United States v. Herbert Vederman

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-4397, 16-4410, 16-4411,

16-4427, 17-1346

_____________

UNITED STATES OF AMERICA

Appellant in 17-1346

v.

CHAKA FATTAH, SR.,

Appellant in 16-4397

KAREN NICHOLAS,

Appellant in 16-4410

ROBERT BRAND,

Appellant in 16-4411

HERBERT VEDERMAN,

Appellant in 16-4427

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court Nos. 2-15-cr-00346-001,

2-15-cr-00346-002, 2-15-cr-00346-003,

2-15-cr-00346-004

District Judge: The Honorable Harvey Bartle III

Argued January 18, 2018

Before: SMITH, Chief Judge, GREENAWAY, JR., and

KRAUSE, Circuit Judges

(Filed: January 16, 2019)

Andrea G. Foulkes

Eric L. Gibson

Paul L. Gray

Robert A. Zauzmer

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Jonathan Ian Kravis [ARGUED]

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, DC 20005

Counsel for the United States

Mark M. Lee

Bruce P. Merenstein [ARGUED]

Samuel W. Silver

2

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Appellant Fattah

Ann C. Flannery [ARGUED]

Suite 2700

1835 Market Street

Philadelphia, PA 19103

Lisa A. Mathewson

Suite 810

123 South Broad Street

Philadelphia, PA 19109

Counsel for Appellant Nicholas

Alan Silber

Pashman Stein Walder Hayden

21 Main Street

Suite 200

Hackensack, NJ 07601

Counsel for National Association of Criminal

Defense Lawyers, Amicus Appellant Nicholas

Mira E. Baylson

Barry Gross [ARGUED]

Meredith C. Slawe

Drinker Biddle & Reath

One Logan Square

3

Suite 2000

Philadelphia, PA 19103

Counsel for Appellant Brand

Henry W. Asbill

Buckley Sandler

1250 24th Street, N.W.

Suite 700

Washington, DC 20037

Glen D. Nager [ARGUED]

Jacob M. Roth

Julia W. M. F. Sheketoff

Jones Day

51 Louisiana Avenue, N.W.

Washington, DC 20001

Counsel for Appellant Vederman

________________

OPINION

________________

SMITH, Chief Judge.

4

Table of Contents

I. Introduction ................................................................... 8

II. Background .................................................................. 9

A. The Fattah for Mayor Scheme ................................. 9

1. The Lord Loan and Its Repayment ..................... 10

2. The College Tuition Component of the FFM

Scheme ................................................................ 27

3. The NOAA Grant and the Phantom Conference 28

B. The Blue Guardians Scheme.................................. 31

C. The Fattah–Vederman Bribery Scheme................. 33

D. The Indictment and Trial ....................................... 39

III. Juror Misconduct and Dismissal of Juror 12 ........... 58

A. Investigation of Alleged Juror Misconduct ........... 58

B. Dismissal of Juror 12 ............................................. 64

IV. The District Court’s Instructions Under McDonnell 70

A. The McDonnell Framework................................... 71

B. The Kirk Meeting ................................................... 76

C. Fattah’s Efforts to Secure Vederman an

Ambassadorship.......................................................... 79

D. The Zionts Hiring .................................................. 82

E. Vederman’s Sufficiency Challenge to Counts 16–18

and 22–23.................................................................... 89

F. Blue Guardians ....................................................... 91

5

V. Sufficiency of the Evidence for the RICO Conspiracy

Conviction ...................................................................... 95

VI. Variance from the Indictment and Sufficiency of the

Evidence for Count 2.................................................... 110

VII. The District Court’s Instruction to the Jury on the

Meaning of Intent ......................................................... 120

VIII. Sending the Indictment to the Jury ...................... 126

IX. The District Court’s Evidentiary Rulings .............. 129

A. The District Court’s Application of Rule 404(b) 129

B. Evidentiary Rulings Regarding Nicholas’s

Defense ..................................................................... 134

1. The EAA Board Minutes .................................. 134

2. Jones’ Memory Regarding Other Contracts ..... 136

3. Exclusion of NOAA Evidence.......................... 137

C. The Cooperating Witness’s Mental Health

Records ..................................................................... 138

1. The District Court’s Denial of Access to the

Mental Health Records ..................................... 140

2. The District Court’s Grant of the Motion in

Limine ............................................................... 142

X. The Government’s Cross-Appeal ............................ 147

A. CUMA is a Mortgage Lending Business............. 148

B. Sufficiency of the Evidence ................................. 155

XI. Prejudicial Spillover ............................................... 158

A. Fattah’s Claim of Prejudicial Spillover ............... 159

6

B. Vederman’s Assertion of Prejudicial Spillover ... 160

XII. Conclusion ............................................................ 164

7

I. Introduction

Chaka Fattah, Sr., a powerful and prominent fixture

in Philadelphia politics, financially overextended himself

in both his personal life and his professional career during

an ultimately unsuccessful run for mayor. Fattah received

a substantial illicit loan to his mayoral campaign and used

his political influence and personal connections to engage

friends, employees, and others in an elaborate series of

schemes aimed at preserving his political status by hiding

the source of the illicit loan and its repayment. In so doing,

Fattah and his allies engaged in shady and, at times, illegal

behavior, including the misuse of federal grant money and

federal appropriations, the siphoning of money from

nonprofit organizations to pay campaign debts, and the

misappropriation of campaign funds to pay personal

obligations.

Based upon their actions, Fattah and four of his

associates—Herbert Vederman, Robert Brand, Bonnie

Bowser, and Karen Nicholas—were charged with

numerous criminal acts in a twenty-nine count indictment.

After a jury trial, each was convicted on multiple counts.

All but Bowser appealed. As we explain below, the

District Court’s judgment will be affirmed in part and

reversed in part.

8

II. Background1

During the 1980s and ’90s, Fattah served in both

houses of the Pennsylvania General Assembly, first as a

member of the House of Representatives and later as a

Senator. In 1995, Fattah was elected to the United States

House of Representatives for Pennsylvania’s Second

Congressional District. In 2006, Fattah launched an

unsuccessful run for Mayor of Philadelphia, setting in

motion the events that would lead to his criminal

conviction and resignation from Congress ten years later.

A. The Fattah for Mayor Scheme

Fattah declared his candidacy for mayor in

November of 2006. Thomas Lindenfeld, a political

consultant on Fattah’s exploratory committee, believed

that “[a]t the beginning of the campaign, [Fattah] was a

considerable . . . candidate and somebody who had a very

likely chance of success.” JA1618. But Fattah’s campaign

soon began to experience difficulties, particularly with

fundraising. Philadelphia had adopted its first-ever

campaign contribution limits, which limited contributions

to $2,500 from individuals and $10,000 from political

action committees and certain types of business

organizations. Fattah’s fundraising difficulties led him to

1

The facts are drawn from the trial record unless otherwise

noted.

9

seek a substantial loan, far in excess of the new

contribution limits.

1. The Lord Loan and Its Repayment

While serving in Congress, Fattah became

acquainted with Albert Lord, II. The two first met around

1998, when Lord was a member of the Board of Directors

of Sallie Mae.

As the May 15, 2007 primary date for the

Philadelphia mayoral race approached, Fattah met Lord to

ask for assistance, telling Lord that the Fattah for Mayor

(FFM) campaign was running low on funds. Fattah asked

Lord to meet with Thomas Lindenfeld, a political

consultant in Washington, D.C., and part-owner of LSG

Strategies, Inc. (Strategies), a company that was working

with the FFM campaign and that specialized in direct voter

contact initiatives. Lindenfeld had been part of the

exploratory group that initially considered Fattah’s

viability as a candidate for mayor. Lindenfeld had known

Fattah since 1999, when Fattah endorsed Philadelphia

Mayor John Street. Through Fattah, Lindenfeld had also

gotten to know several of Fattah’s associates, including

Herbert Vederman, Robert Brand, and Bonnie Bowser.

Herbert Vederman, a businessman and former state

official, was the finance director for the FFM campaign.

Robert Brand owned Solutions for Progress (Solutions), a

“Philadelphia-based public policy technology company,

whose mission [was] to deliver technology that directly

assists low and middle income families [in obtaining]

10

public benefits.” JA6551. Bowser was Fattah’s Chief of

Staff and campaign treasurer, and served in his district

office in Philadelphia.

Lord’s assistant contacted Lindenfeld to arrange a

meeting, and Lindenfeld informed Fattah that he would be

meeting with Lord. Lindenfeld, along with his partner,

Michael Matthews, met with Lord and discussed Fattah’s

need for funds to mount an intensive media campaign.

After that meeting, Lindenfeld reported to Fattah that Lord

wanted to help, but that they had not discussed a specific

dollar amount. Approximately a week later, Fattah

instructed Lindenfeld to meet with Lord a second time.

Lord “wanted to know if he could give a substantial

amount of money, a million dollars” to Fattah’s campaign.

JA1630. That prompted Lindenfeld to reply that the

amount “would be beyond the campaign finance limits.”

Id.

Lord proposed a solution: he offered to instead give

a million dollars to Strategies in the form of a loan. To that

end, Lindenfeld had a promissory note drafted which

specified that Lord was lending Strategies $1 million, and

that Strategies promised to repay the $1 million at 9.25%

interest, with repayment to commence January 31, 2008.

Lindenfeld later acknowledged that the promissory note

would make it appear as though Lord’s $1 million was not

a contribution directly to the Congressman, although he

knew that it was actually a loan to the FFM campaign.

Indeed, Lindenfeld confirmed with Fattah that neither

11

Lindenfeld nor Strategies would be responsible for

repayment. With that understanding, Lindenfeld executed

both the note and a security agreement purporting to

encumber Strategies’ accounts receivable and all its assets.

On May 1, shortly before the primary election, Lord

wired $1 million to Lindenfeld. Lindenfeld held the money

in Strategies’ operating account until Fattah told him how

it was to be spent. Some of the money was eventually used

for print materials mailed directly to voters. And, at

Fattah’s direction, Lindenfeld wired a substantial sum to

Sydney Lei and Associates (SLA), a company owned by

Gregory Naylor which specialized in “get out the vote”

efforts.

Naylor had known Fattah for more than 30 years.2

During the campaign, Naylor worked as the field director

and was in charge of getting out the vote on election day.

2

Naylor first worked with Fattah when he was in the state

legislature. When Fattah was elected to Congress, Naylor

worked in his Philadelphia office. Naylor met Nicholas

when she joined Fattah’s staff at some point in the 1990s.

After concluding her employment with Fattah’s office,

Nicholas worked with the Educational Advancement

Alliance (EAA), an education nonprofit entity founded by

Fattah. This entity helped to recruit underrepresented

students for scholarship and college opportunities. Around

2009, Naylor left Fattah’s office to work exclusively with

SLA. Naylor also knew Brand.

12

On the final day of the campaign, Naylor worked with

Vederman, who allowed Naylor to use his credit card to

rent vans that would transport Fattah voters to the polls.

As the primary date neared, Fattah and Naylor knew

the campaign was running out of money. The campaign

was unable to finance “media buys,” and Naylor needed

money for field operations to cover Philadelphia’s more

than one thousand polling places. In early May,

Lindenfeld called Naylor to say that Lindenfeld “would be

sending some money [Naylor’s] way.” JA3057. Within

days, SLA received a six-figure sum for Naylor to use in

the campaign and on election day. Naylor used the money

to pay some outstanding bills, including salaries for FFM

employees, and allocated $200,000 to field operations for

election day.

Fattah lost the mayoral primary on May 15, 2007.

Afterward, Lindenfeld spoke with Fattah, Naylor and

Bowser about accounting for the FFM campaign money

from Lord that had been spent. They decided that the

amounts should not appear in the FFM campaign finance

reports, and Fattah instructed Naylor to have his firm,

SLA, create an invoice. Naylor did so, creating an invoice

dated June 1, 2007 from SLA to FFM, seeking payment of

$193,580.19. Naylor later acknowledged that the FFM

campaign did not actually owe money to SLA, and that the

false invoice was created to “hide the transaction that took

place earlier” and “make it look like [SLA] was owed

money.” JA3075–76. Although FFM did not owe SLA

13

anything for the election day expenses, the FFM campaign

finance reports from 2009 through 2013 listed a $20,000

in-kind contribution from SLA for each year, thereby

lowering FFM’s alleged outstanding debt to SLA.

Of the total $1 million Lord loan, $400,000 had not

been spent. Lindenfeld returned that sum to Lord on June

3, 2007. He included a cover letter which stated: “As it

turns out the business opportunities we had contemplated

do not seem to be as fruitful as previously expected.”

JA1254. Lindenfeld later admitted that there were no such

“business opportunities” and that the letter was simply an

effort to conceal the loan.

In late 2007, faced with financial pressures, Lord

asked his son, Albert Lord, III, to collect the outstanding

$600,000 balance on the loan to Strategies. Lord III

contacted Lindenfeld about repayment and expressed a

willingness to forgive the interest owed if the principal

was paid. Lindenfeld immediately called Fattah and

informed him that repayment could not be put off any

longer. Fattah told Lindenfeld more than once that “[h]e

would take care of it,” JA1652, but Fattah did not act.

Needing someone who might have Fattah’s ear,

Lindenfeld reached out to Naylor and Bowser. Naylor

talked to Fattah on several occasions and told him that

Lindenfeld was under considerable pressure to repay the

loan. Fattah told Naylor more than once that he was

“working on it.” JA3082–83.

14

During his political career, Fattah had focused on

education, especially for the underprivileged. Indeed,

Fattah founded two nonprofit organizations: College

Opportunity Resources for Education (CORE), and the

Educational Advancement Alliance (EAA).

EAA held the annual Fattah Conference on Higher

Education (the “annual conference”) to acquaint high

school students with higher education options. JA3079.

Sallie Mae regularly sponsored the conference. According

to Raymond Jones, EAA’s chairman of the board from

2004 through 2007, EAA offered a variety of programs to

provide “marginalized students with educational

opportunities so they could continue and go to college.”

JA1360. EAA was funded with federal grant money which

could only be spent for the purposes described in the

particular grant. Karen Nicholas served as EAA’s

executive director, handling the organization’s day-to-day

administrative responsibilities. Nicholas had previously

been a staffer for Fattah when he was a member of

Pennsylvania’s House of Representatives.

CORE was an organization that awarded

scholarships to graduating high school students in

Philadelphia who had gained admission to a state

university or the Community College of Philadelphia.

CORE received funding from a variety of sources,

including Sallie Mae. Because CORE also received

federal funds, and because EAA had experience working

with federal grants, EAA received and handled the federal

15

funds awarded to CORE. In short, EAA functioned as a

fiduciary for CORE. When money became a problem for

the FFM campaign, Fattah’s involvement with EAA and

CORE soon became less about helping underprivileged

students, and more about providing an avenue for

disguising efforts to repay the illicit campaign funds from

Lord.

On January 7, 2008, Robert Brand contacted Fattah

by telephone. Shortly thereafter, Lindenfeld received an

unexpected call from Brand proposing an arrangement for

Brand’s company, Solutions, to work with Strategies.

Solutions had developed a software tool called “The

Benefit Bank,” which was designed to “assist low and

moderate income families to have enhanced access to

benefits and taxes.” JA1993. During the telephone call,

Brand referred to The Benefit Bank and suggested a

contract under which Strategies would be paid $600,000

upfront. JA1666. Shortly thereafter, on January 9, 2008,

Brand followed up on his call to Lindenfeld with an email

about “develop[ing] a working relationship where you

could help us to grow The Benefit Bank and our process

of civic engagement. While I know this is not your core

business I would like to try to convince you to take us on

as a client.” JA6427. Lindenfeld responded that he was

interested. To Lindenfeld, “this was the way that

Congressman Fattah was going to repay the debt to Al

Lord.” JA1654. When Lindenfeld called Fattah and told

him of the contact from Brand, Fattah simply replied that

Lindenfeld “should just proceed.” JA1666–67.

16

A few days later, Brand emailed Nicholas at EAA a

proposal from Solutions concerning The Benefit Bank,

which sought EAA’s support in developing an education

edition of The Benefit Bank and a $900,000 upfront

payment.

As the January 31 date for repayment of the balance

of the $1 million Lord loan approached, a flurry of activity

took place. On January 24, both Raymond Jones, chair of

the EAA Board, and Nicholas signed a check from EAA

made out to Solutions in the amount of $500,000.

Although no contract existed between EAA and Solutions,

the memo line of the check indicated that it was for a

contract, and Nicholas entered it into EAA’s ledger.3

That same day, Ivy Butts, an employee of

Strategies, emailed Lindenfeld the instructions Brand

would need to wire the $600,000 balance on the Lord loan.

3

Raymond Jones, who was EAA’s Chairman of the Board

from 2004 through 2007, recalled at trial that the Board

had a limit on the amount that Nicholas could spend

without board approval. JA1358, 1369. Nicholas was

authorized to sign contracts on behalf of EAA for no more

than $100,000. JA1369–71. Jones did not recall the

contract between EAA and Solutions, nor did the EAA

board minutes for December 2007, February 2008, or May

2008 refer to the EAA–Solutions contract or to the

substantial upfront payment of half a million dollars upon

execution of the agreement. JA6358–63; 6567.

17

Within minutes, Lindenfeld forwarded that email to Brand

at Solutions. Brand then made two telephone calls to

Fattah. By late afternoon, Brand emailed Nicholas,

informing her that he had “met with all the people I need

to meet with and have a pretty clear schedule of what

works best for us. I am also seeing what line of credit we

have to stretch out the payments until you get your line of

credit in place.” JA6558. Brand asked if they could talk

and “finalize this effort.” JA6558. On January 25 and 26,

there were a number of calls between Fattah, Brand, and

Nicholas.

On Sunday January 27, at 5:46 pm, Brand

telephoned Fattah. At 10:59 pm, Brand emailed Nicholas

a revised contract between EAA and Solutions for the

engagement of services. Brand indicated he would send

someone to pick up the check at about 1:00 pm the

following day. The revised contract called for the same

$900,000 payment from EAA to Solutions, yet specified

that $500,000 was to be paid on signing, with $100,000

due three weeks later, and another $100,000 to be paid six

weeks out. No due date for the $200,000 balance was

specified. The terms of the contract called for EAA to

assist Solutions with further developing The Benefit Bank.

In addition, under the contract, EAA would receive certain

18

funds from the Commonwealth of Pennsylvania for a

program relating to FAFSA applications. 4

The same evening, Brand sent Lindenfeld a contract

entitled “Cooperative Development Agreement to Provide

Services to Solutions for Progress, Inc. for Growth of The

Benefit Bank.” JA6569. The agreement proposed a

working partnership in which Strategies would work with

Solutions to identify and secure a Benefit Bank affiliate in

the District of Columbia and two other states, and to

facilitate introductions to key officials in other states

where The Benefit Bank might expand. The terms of the

agreement provided that Solutions would pay $600,000 to

Strategies by January 31, 2008, which would “enable

[Strategies’] team to assess opportunities and develop

detailed work plans for each area.” JA6572. Brand copied

Solutions’ Chief Financial Officer, Michael Golden.

Lindenfeld responded to Brand’s email within a minute,

asking if Brand had received the wiring instructions.

Brand immediately confirmed that he had.

Concerned that Solutions did not have $600,000 to

pay Strategies, Golden talked to Brand, who informed him

that Solutions would be receiving a check for $500,000

from EAA. Early the next morning, Nicholas responded to

Brand’s email from the night before. She advised Brand

that he could pick up the check, “but as I stated I am not

4

FAFSA is an acronym for Free Application for Federal

Student Aid.

19

in a position to sign a contract committing funds that I am

not sure that I will have.” Gov’t Supp. App. (GSA) 1. That

same day, a $540,000 transfer was made from the

conference account, which EAA handled, into EAA’s

checking account. The conference account was maintained

to handle expenses for Fattah’s annual higher education

conference. Prior to this transfer, EAA had only

$23,170.95 in its account. EAA then tendered a $500,000

check to Solutions, which promptly deposited the check

before the close of that day’s business. EAA never

replenished the $540,000 withdrawal from the conference

account.

Brand received the executed contract between

Solutions and Strategies on January 28. Even though the

contract called for Strategies to perform services in

exchange for the $600,000 payment, Lindenfeld neither

expected to do any work for the $600,000, nor did he in

fact do any work.

In sum, by January 28, Solutions had received

$500,000 from EAA, but it still had to come up with

$100,000 to provide Strategies with the entire amount

needed to repay the Lord loan. Golden obtained the needed

funds the following day by drawing $150,000 on a line of

credit held by Brand’s wife. Brand and Fattah spoke four

more times on the telephone on January 29. Trial evidence

later showed that, during the month of January 2008,

neither the FFM campaign bank account nor Fattah’s

20

personal account had a sufficient balance to fund a

$600,000 payment.

On the morning of January 30, frustrated by the

delay, Lindenfeld sent Brand an email with a subject line

“You are killing me.” JA6430. Lindenfeld stated that he

had “made a commitment based on yours to me. Please

don’t drag this out. I have a lot on the line.” Id. Brand

responded late in the afternoon, stating: “just met with

Michael. He does the transfer at 8 AM tomorrow. It should

be in your account ($600K) early tomorrow morning.” Id.

Lindenfeld replied: “The earlier the better.” Id. The

following morning, Golden wired $600,000 from

Solutions’ Pennsylvania bank account into Strategies’

Washington D.C. bank account. JA2745, 2874. Strategies

in turn, wired the same amount from its Washington D.C.

bank account to Lord’s bank account in Virginia. JA2874,

6549. Around noon, Brand telephoned Lindenfeld.

In the days following the exhaustive efforts to meet

the January 31 loan repayment deadline, four more

telephone calls took place between Brand and Fattah.5

Naylor learned at some point that the loan had been paid

off. When Naylor asked Fattah about details of the

repayment, Fattah simply replied “[t]hat it went through

EAA to Solutions and it was done.” JA3088.

5

By contrast, between October to December 2007, Brand

and Fattah spoke by telephone only “once or twice [a]

month.” JA2734.

21

Meanwhile, at some point in January, EAA received

notice that the Department of Justice Office of the

Inspector General (DOJ) intended to audit its books.6 DOJ

auditors told EAA to provide, at the “entrance

conference,” documentation containing budgetary and

accounting information. EAA failed to produce any

accounting information.

Although Lindenfeld was no longer making

demands of Brand, Brand was still owed the remaining

$100,000 that Solutions had paid to satisfy the Lord loan.

On March 23, 2008, Brand sent Nicholas an email

outlining his efforts to contact her over the previous two

weeks about documentation on the CORE work, how to

proceed with the paperwork for the Commonwealth of

Pennsylvania, and “how we can get our proposed contract

signed and the outstanding payments made.” JA2749.

Nicholas responded that evening, writing:

I can appreciate your urgency however I do

have EAA work that I continue to do,

including the [usual] facilitation of programs,

our financial audit, the start-up of two new

programs[,] and of course the DOJ audit. I am

still trying to obtain a line of credit without a

completed 2007 audit and things are getting a

6

One of the terms and conditions of a federal grant is that

the recipient “be readily prepared for an audit.” JA2314.

22

little uncomfortable now as I try to keep us

afloat.

JA6576. Nicholas told Brand that the DOJ auditors were

making demands and would soon be on site. She noted that

“[t]hey are still very uncomfortable with your contract

amongst other things and depending on their findings

some of the funding received may have to be returned.” Id.

Nicholas said that she had submitted the paperwork to the

state, and she told Brand that “in the future . . . as a result

of the DOJ audit I will not be in a position to do another

contract such as this.” Id.

Shortly after Nicholas’s reply to Brand, Nicholas

forwarded the Brand–Nicholas email chain to Fattah. The

body of the email stated, in its entirety: “I really don’t

appreciate the tone of Bob’s email. I can appreciate that he

has some things going on however I am doing my best to

assist him. Some other things are a priority. He needs to

back off.” GSA2. Later that night, Bowser sent Fattah an

email with a subject line that read “Karen N” and a

telephone number. JA2752.

As the audit continued, the auditors found other

deficiencies. During April of 2008, DOJ issued a notice of

irregularity to EAA, which resulted in the audit being

referred to DOJ’s Investigations Division for a more

comprehensive review.

On April 24, 2008, Brand emailed Nicholas asking

for a time to update her on The Benefit Bank. In early May,

23

Brand sent another email to Nicholas attaching a revised

EAA–Solutions contract proposal, which decreased the

initial upfront cost from $900,000 to $700,000.

Although Solutions and EAA had still not signed a

contract, EAA paid Solutions another $100,000 in May.

That money was obtained via a loan to EAA from CORE.

Thomas Butler, who had worked for Fattah both when

Fattah was in Congress and when he was in the General

Assembly, was CORE’s executive director. Butler had

been contacted in mid-May by Jackie Barnett, a member

of CORE’s Board who had also worked with

Congressman Fattah. Barnett informed Butler that

Nicholas had requested a loan from CORE to EAA, and

that Fattah, as Chairman of CORE’s Board, had approved

it. Butler and Barnett withdrew funds from two CORE

bank accounts and obtained a cashier’s check, dated May

19, in the amount of $225,000 and made payable to EAA.

The withdrawals were from accounts used for Sallie Mae

funds and other scholarship money.

After EAA received the $225,000 check, EAA

tendered a $100,000 check to Solutions. The check bore

the notation “Commonwealth of Pennsylvania.” EAA

repaid CORE the following month. Because EAA lacked

sufficient funds of its own to cover this payment, EAA

drew on grant money that it had received from NASA.

Brand and Lindenfeld continued to communicate

concerning The Benefit Bank. In July of 2008, a meeting

was held at Solutions with Brand, Lindenfeld, Golden, and

24

other Solutions employees to discuss “an enormous

amount of work” that Brand wanted Strategies to do.

JA1670. Lindenfeld said in response “we’d be glad to do

that, but . . . we would have to be paid.” Id. At that point,

someone in the meeting stated that Strategies “had already

been paid” $600,000. Id. Lindenfeld replied: “well, that

was for Congressman Fattah, . . . that’s not for us. So if

you want us to do work, we have to get paid for it

separately.” Id. Brand became upset with Lindenfeld over

his comment about being paid because his colleagues at

Solutions were not aware of the reason for the $600,000

payment.

Meanwhile, EAA was attempting to meet the

demands of the DOJ auditors, who were focused on the

relationship between EAA and CORE. DOJ served a

subpoena upon Solutions to produce “[a]ny and all

documents including, but not limited to, contract

documents, invoices, correspondence, timesheets,

deliverables and proof of payment related to any services

provided to or payments received” from CORE or EAA.

JA2350.

Special Agent Dieffenbach, from the DOJ,

interviewed Nicholas on July 14, 2008. During that

interview, Nicholas discussed the relationship between

EAA and CORE, how invoices were paid, and how

consultants were handled. Nicholas also answered

questions about EAA’s relationship with Solutions,

including the payment of invoices. She did not inform

25

Agent Dieffenbach of the $500,000 payment in January or

the subsequent $100,000 payment in May. Nor did the

interview address the EAA–Solutions contract that

purportedly required those payments, because the contract

had yet to be produced.

Solutions failed to comply with the subpoena,

prompting an email from Agent Dieffenbach on August 26

asking for an update concerning Solutions’ reply to the

DOJ subpoena. Solutions then produced an undated

version of the EAA–Solutions contract that required the

$600,000 upfront payment. Neither Brand nor Nicholas

provided the auditors with the January and May checks

from EAA to Solutions.

Efforts to conceal the repayment of the Lord loan

and to promote the political and financial interests of

Fattah continued. The FFM campaign reports indicated in-

kind contributions of debt forgiveness by SLA even

though there had been no actual debt. In September of

2009, with EAA’s ledgers still under scrutiny, Nicholas

altered the description of the entry for the $100,000 check

to Solutions from “professional fees consulting” to

“CORE Philly.” JA2546. Other FFM campaign debt was

reduced further after Vederman negotiated with creditors.

EAA never fully recovered from its payment of the

$600,000 balance on the Lord loan and the audits that took

place in 2008. It began laying off employees in 2011, and

by June of 2012, only four employees remained. JA3659.

EAA ceased operations at some point in 2012. JA1530.

26

2. The College Tuition Component of the FFM

Scheme

Although the FFM campaign was close to insolvent,

it nevertheless made tuition payments for Fattah’s son,

Chaka Fattah Jr., also known as Chip. Chip attended

Drexel University, but had yet to complete his coursework

because he had failed to pay an outstanding tuition

balance. As the FFM campaign got underway in 2007,

Fattah wanted Chip to re-enroll in classes at Drexel and

get a degree. Fattah asked Naylor to help financially, and

he did so by writing checks from SLA to Drexel toward

Chip’s outstanding tuition. By October of 2007, Chip was

permitted to re-enroll in classes.

Although Naylor never directly addressed the issue

with Fattah, he agreed to assist with Chip’s outstanding

tuition with the expectation that SLA would be repaid. The

first check to Drexel in the amount of $5,000 was sent in

August of 2007, with $400 payments in the months that

followed until August of 2008. At some point, Chip

informed Naylor that the payee was no longer Drexel, but

Sallie Mae. Naylor then began sending monthly checks

from SLA to Sallie Mae. Those payments, in the amount

of $525.52, began in March of 2009 and continued until

April of 2011, after which Fattah told Naylor he no longer

needed to make them. SLA’s payments to Drexel and

Sallie Mae totaled $23,063.52.

Naylor’s expectation of repayment was eventually

realized. Beginning in January of 2008 and continuing

27

until November 2010, Bowser sporadically sent SLA

reimbursement checks from the FFM campaign with a

notation that payment was for “election day operation

expenses.” JA3136. The FFM funds had been transferred

from the Fattah for Congress campaign. These

reimbursement checks totaled $25,400. In an effort to

conceal the source of the payments to Drexel and Sallie

Mae, and to make it appear that the younger Fattah had

performed services for SLA, Naylor created false tax

forms for Chip. Chip, however, had never performed

services for SLA.

3. The NOAA Grant and the Phantom Conference

In mid-December 2011, when EAA was

experiencing serious financial difficulties, Nicholas

submitted an email request to the educational partnership

program of the National Oceanic & Atmospheric

Administration (NOAA) for a grant “designed to provide

training opportunities and funding to students at minority

serving institutions” interested in science, technology,

engineering, and math fields related to NOAA’s mission.

JA3354–55. The request sought $409,000 to fund EAA’s

annual conference scheduled for February 17–19, 2012.

Jacqueline Rousseau, a supervisory program manager at

NOAA, participated in a conference call with Nicholas

shortly thereafter and advised Nicholas that the agency

could not afford the $409,000 request but would consider

a smaller grant. Rousseau advised Nicholas that EAA

28

would need to submit an application if it wished to be

considered for a grant.

Before submitting a grant application, Nicholas

emailed Rousseau about sponsoring the conference. On

January 11, 2012, Rousseau informed Nicholas that the

“NOAA Office of Education, Scholarship Programs has

agreed to participate and provide sponsorship funds of

$50K to support the referenced conference.” JA6453.

Rousseau also informed Nicholas that Chantell Haskins,

who also worked with the student scholarship program,

would be the point of contact for NOAA.

In February 2012, EAA held its annual conference

at the Sheraton Hotel in downtown Philadelphia. The

conference had been held at the same location each year

since 2008.

Nicholas contacted Haskins at some point in early

2012, inquiring about the $50,000 grant. On May 8, 2012,

Haskins sent Nicholas an e-mail which included

information about submitting proposals to fund a

conference for students. EAA then submitted a grant

application, which Haskins reviewed. She advised

Nicholas on June 28, 2012 that the grant could not be used

to provide meals, and that the date of the conference would

have to be pushed back, with the new date included in a

modified application. When Nicholas asked if expenses

from a previous conference could be paid from the new

grant, Haskins informed her that this was not allowed.

29

In early July 2012, Nicholas sent a modified grant

proposal to Haskins. It eliminated the budget item for food

and changed the date of the 2012 conference to October

19–21, 2012 at the same Sheraton Hotel in Philadelphia

where EAA’s annual conference had taken place earlier in

the year. NOAA approved a $50,000 grant for the October

2012 conference—a conference that would never be held.

Unaware that no October 2012 conference had

taken place, NOAA allowed Nicholas access to the

$50,000 grant in March of 2013. She then transferred the

entire amount from NOAA to EAA’s bank account a few

days later. Naylor had performed services for EAA for

which he was still owed $116,590. JA3119. In discussions

with Naylor, Nicholas had informed him that the

likelihood of EAA’s being able to pay him was “[n]ot very

good.” JA3120. Yet several days after EAA had received

the $50,000 from NOAA, Nicholas sent Naylor a check

for $20,000. JA3120, 4283.

On April 3, 2013, Nicholas submitted a final report

to NOAA concerning EAA’s use of the grant. Notably,

page 4 of the report stated the conference had been held in

February 2012, while page 17 stated that the conference

had been held from October 19 to 21, 2012. NOAA issued

a notice asking for clarification and for a list of students

who had been supported at the conference. Nicholas failed

to file either a clarifying report regarding the date of the

conference or a timely report regarding the disbursement

of the grant. Finally, in November of 2013, Nicholas

30

submitted the final Federal Financial Report in which she

certified, falsely, that the $50,000 had been used for a

project during the period from August 1, 2012 to

December 30, 2012.

B. The Blue Guardians Scheme

In addition to functioning as the conduit for Lord’s

$1 million loan to Fattah’s campaign, Lindenfeld’s

company, Strategies, also performed services for the

campaign. The work resulted in indebtedness from FFM

to Strategies of approximately $95,000. Fattah made

several small payments, but failed to pay the full amount

due. Although Lindenfeld spoke to Fattah, Naylor and

Bowser about the debt, no payments were forthcoming.

During a meeting in Fattah’s D.C. office, Fattah told

Lindenfeld “that [repayment] really wasn’t going to be

possible because the campaign had been over for a long

time” and the funds were not available. JA1693. Fattah

then asked Lindenfeld if he could write off the debt on his

FFM campaign finance reports. Id. Lindenfeld told Fattah

that as long as he was paid, it was not his business how

Fattah disclosed it on the campaign finance reports.

JA1694.

In lieu of repayment, Fattah suggested that

Strategies could claim to be interested in setting up an

entity to address environmental issues and ocean pollution

along the coastline and in the Caribbean. Fattah explained

that creating such an entity would make it possible to

obtain an appropriation from the government. Hearing

31

this, Lindenfeld knew he was not going to be paid by the

FFM campaign, and was amenable to receiving money

from an appropriation instead. At a later meeting,

Lindenfeld told Fattah that the name of the entity would

be “Blue Guardians.” Lindenfeld consulted with an

attorney about creating Blue Guardians as an entity to

receive the federal grant. He emailed Fattah, asking

questions about how to complete an application to the

House Appropriations Committee. Fattah provided

suggestions, and an application was eventually completed.

It indicated that Blue Guardians would be “in operation for

a minimum of ten years,” and, in accordance with Fattah’s

guidance, requested $15 million in federal funds. JA1711–

13.

Lindenfeld submitted the application to Fattah’s

office in April of 2009. Afterward, a Fattah staffer

contacted Lindenfeld to suggest that he change his

Washington, D.C., address to Philadelphia because that

was the location of Fattah’s district. Fattah later suggested

to Lindenfeld that Brand might allow the use of his

Philadelphia office address, a plan to which Brand agreed.

In February 2010, Lindenfeld submitted a second

application to the Appropriations Committee. In March,

Fattah submitted a project request using his congressional

letterhead and seeking $3,000,000 for the “Blue

Guardians, Coastal Environmental Education Outreach

Program.” JA6432. Within a month, Blue Guardians had

both articles of incorporation and a bank account. Around

32

that time, a news reporter contacted Lindenfeld to discuss

the new Blue Guardians entity. The inquiry made

Lindenfeld uncomfortable, and he ultimately decided to

abandon the Blue Guardians project. He continued to seek

payment from Fattah, to no avail.

Nonetheless, having obtained Lindenfeld’s

acquiescence to writing off the campaign’s debt to

Strategies, Fattah started falsifying FFM’s campaign

reports. Beginning in 2009 and extending through 2013,

the FFM campaign reports executed by Fattah and Bowser

stated that Strategies made in-kind contributions of

$20,000, until the debt appeared to have been paid in full.

C. The Fattah–Vederman Bribery Scheme

Vederman and Fattah were personal friends.

Vederman was a successful businessman who had also

served in prominent roles in the administrations of Ed

Rendell when he was Mayor of Philadelphia and Governor

of Pennsylvania. In November of 2008, Vederman was a

senior consultant in the government and public affairs

practice group of a Philadelphia law firm. His assistance

to the FFM campaign included paying for rented vans used

in the get-out-the-vote effort.

After Fattah’s electoral defeat, the campaign still

owed more than $84,000 to a different law firm for

services performed for the campaign. Vederman

approached that firm in the summer of 2008 asking if it

would forgive FFM’s debt. Negotiations resulted in a

33

commitment from FFM to pay the firm $30,000 by the end

of 2008 in exchange for forgiveness of $20,000, all of

which would appear on the FFM campaign finance report.

Vederman’s efforts also led to payment by Fattah of an

additional $10,000 in 2009 to the law firm, in exchange

for additional forgiveness of $20,000 of debt. It was not

long after Vederman’s successful efforts to lower Fattah’s

campaign debt, that Fattah wrote a letter to U.S. Senator

Robert P. Casey recommending Vederman for an

ambassadorship.

At some point in 2010, Vederman again intervened

on behalf of the FFM campaign. FFM remained in debt to

an advertising and public relations firm owned by Robert

Dilella. By late 2011, Vederman and Dilella had worked

out a settlement to resolve the outstanding debt. Pursuant

to that settlement, Dilella received partial payment from

the FFM campaign: $25,000 in satisfaction of a $55,000

debt. Dilella testified at trial that he would not have agreed

to retire a portion of the debt had he known the FFM

campaign was paying college tuition for Fattah’s son.

Vederman helped Fattah financially in other ways.

Before the 2006 FFM campaign, Fattah and his wife,

Renee Chenault-Fattah, sponsored a young woman named

Simone Muller to live with them as an au pair exchange

visitor. Muller was from South Africa, and her J-1 visa

allowed her to serve as a nanny and to study in the United

States. Muller later applied for and received a second visa,

an F-1 student visa that indicated she had been accepted as

34

an international student at the Community College of

Philadelphia. The application indicated that Muller would

again be residing with the Fattahs. Notwithstanding this

living arrangement, Fattah identified Vederman as the

person who would be paying for Muller’s trip to the

United States.

By the beginning of 2010, Muller wished to transfer

to Philadelphia University. This required her to submit

verification that funds were available to pay for her study.

Although the Fattahs were Muller’s sponsors, Fattah

explained to the University’s Dean of Enrollment Services

that he was submitting a letter of secondary support from

Vederman. JA3754, 3763–65, 6504. Without Vederman’s

January 2010 letter of support, the University would not

have admitted Muller. In addition to this pledge of support,

Vederman paid $3,000 of Muller’s tuition. Shortly

thereafter, Fattah resumed his efforts to secure an

ambassadorship for Vederman.

In February of 2010, Fattah staffer Maisha Leek

contacted Katherine Kochman, a scheduler for White

House Chief of Staff Rahm Emanuel. Leek requested a

telephone conference with Emanuel, Rendell, and Fattah

to discuss Vederman’s “serving his country in an

international capacity.” JA2893. In a follow-up email on

March 26, Leek sent documents to Kristin Sheehy, a

secretary to White House Deputy Chief of Staff James

Messina. The documents included Fattah’s 2008 letter to

Senator Casey and Vederman’s biography. After

35

participating in a telephone conference about Vederman

with Fattah and Rendell, Messina sent Vederman’s

biography to the White House personnel office for

consideration.

As the April 2010 tax deadline approached, Fattah

still owed the City of Philadelphia earned income tax in

the amount of $2,381. Just days before the filing deadline,

Vederman gave a check to Chip Fattah for $3,500. The

younger Fattah quickly deposited $2,310 into his father’s

bank account. Fattah paid his tax bill on April 15. Without

Chip’s deposit into his father’s bank account, the older

Fattah would not have had sufficient funds to pay his tax

bill.

On October 30, 2010, Vederman gave Chip another

check, this one for $2,800. That same day, Fattah hand-

delivered a letter to President Obama recommending

Vederman for an ambassadorship. A few weeks later,

Fattah’s staffer, Leek, sent the letter that Fattah had given

to President Obama to Messina’s office. That letter

pointed out that both Rendell and Fattah had sent letters

on behalf of Vederman, and that he was an

“unquestionably exceptional candidate for an

ambassadorship.” JA6291–92.

Fattah’s efforts to secure Vederman an

ambassadorship were unsuccessful. Fattah then shifted

gears and sought to secure Vederman a position on a

federal trade committee. Fattah approached Ron Kirk, who

served as U.S. Trade Representative, and asked him to

36

speak with a constituent. In May of 2011, Leek followed

up on that discussion by emailing Kirk and asking him to

meet with Vederman. Kirk met with Vederman on June 5,

2011 and explained to him the role of the trade advisory

committees. Although the two men “had a very nice

conversation,” JA 3566, it soon became “pretty apparent

to [Kirk and his staff] that [serving on a trade advisory

committee was] not what Mr. Vederman was interested

in.” JA3567. As Kirk put it, “it was obvious that

[Vederman] was looking for something perhaps more

robust in his mind or . . . higher profile than one of our

advisory committees.” Id. Given Vederman’s lukewarm

interest, no appointment to an advisory committee was

forthcoming.

In late December 2011, the Fattahs applied for a

mortgage so they could purchase a second home in the

Poconos. Shortly after applying for the mortgage, Fattah

emailed Vederman, offering to sell him his wife’s 1989

Porsche for $18,000. Vederman accepted the offer. The

next day, Vederman wired $18,000 to Fattah’s Wright

Patman Federal Credit Union account.

The Credit Union Mortgage Association (CUMA)

acted as the loan processing organization for the home

mortgage. Because CUMA is required to verify the source

of any large deposits, CUMA’s mortgage loan processor,

Victoria Souza, contacted Fattah on January 17, 2012, to

confirm the source of the $18,000. Fattah informed Souza

that the $18,000 represented the proceeds of the Porsche

37

sale. Souza requested documentation, including a signed

bill of sale and title.

That same day, Bowser emailed Vederman a blank

bill of sale for the Porsche. After Vederman signed the bill

of sale, Fattah forwarded it to Souza. The bill of sale was

dated January 16, 2012, which was the day before Souza

had requested the documentation. It bore the signatures of

Renee Chenault-Fattah and Herbert Vederman, with

Bonnie Bowser as a witness.

Fattah also provided Souza with a copy of the

Porsche’s title. It was dated the same day it was sent to

Souza, and bore signatures of Chenault-Fattah as the seller

and Vederman as buyer, along with a notary’s stamp.

Neither Vederman nor Chenault-Fattah actually appeared

before the notary.

Vederman never took possession of the Porsche.

Renee Chenault-Fattah continued to have the Porsche

serviced and insured long after the purported sale had

taken place. Moreover, the Porsche remained registered in

Chenault-Fattah’s name, and was never registered to

Herbert Vederman. When FBI agents searched the

Fattahs’ home in 2014, the Porsche was discovered in the

Fattahs’ garage.

On January 24, 2012, the Fattahs wired $25,000 to

the attorney handling the escrow account for the purchase

of the vacation home. Without the $18,000 transfer from

38

Vederman, the Fattahs would not have had sufficient funds

in their bank accounts to close on the home.

Around the same time that the Fattahs were

purchasing the house in the Poconos, Fattah’s Philadelphia

office hired Vederman’s longtime girlfriend, Alexandra

Zionts. Zionts had long worked for a federal magistrate

judge in Florida. Near the end of 2011, the magistrate

judge retired, leaving Zionts ten months shy of obtaining

the necessary service required to receive retirement

benefits. If Zionts could find another job in the federal

government, her benefits and pension would not be

adversely affected. Vederman assisted Zionts in her job

search, which included calling Fattah. Fattah hired her, a

move that put his congressional office overbudget. Zionts

worked in Fattah’s office for only about two months,

leaving to work for a congressman from Florida.

Tia Watson, who performed constituent services for

Fattah and worked on the same floor as Zionts in Fattah’s

district office, testified she had no idea what work Zionts

performed. Although Zionts contacted Temple University

about archiving Fattah’s papers from his career in both the

state and federal government, an employee from Temple

University observed that Zionts’ work contributed nothing

of value to the papers project.

D. The Indictment and Trial

Fattah’s schemes eventually unraveled. On July 29,

2015, a federal grand jury in the Eastern District of

39

Pennsylvania returned a twenty-nine count indictment

alleging that Fattah and his associates had engaged in a

variety of criminal acts. Fattah, Vederman, Nicholas,

Brand, and Bowser were charged with unlawfully

conspiring to violate the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1962(d). In

addition to the RICO charge, the indictment alleged that

Fattah and certain co-defendants had unlawfully conspired

to commit wire fraud, 18 U.S.C. §§ 1343, 1349; honest

services fraud, 18 U.S.C. §§ 1343, 1346, 1349; mail fraud,

18 U.S.C. §§ 1341, 1349; money laundering, 18 U.S.C.

§ 1956; and to defraud the United States, 18 U.S.C. § 371.

Several defendants were also charged with making false

statements to banks, 18 U.S.C. § 1014; falsifying records,

18 U.S.C. § 1519; laundering money, 18 U.S.C. § 1957;

and engaging in mail, wire, and bank fraud, 18 U.S.C.

§§ 1341, 1343, and 1344.

The RICO charge alleged that the defendants and

other co-conspirators constituted an enterprise aimed at

supporting and promoting Fattah’s political and financial

interests. The efforts to conceal the $1 million Lord loan

and its repayment are at the heart of the RICO conspiracy

and the Fattah for Mayor scheme. The indictment further

alleged that the RICO enterprise involved: (1) the scheme

to satisfy an outstanding campaign debt by creating the

fake “Blue Guardians” nonprofit; and (2) the bribery

scheme to obtain payments and things of value from

Vederman in exchange for Fattah’s efforts to secure

Vederman an appointment as a United States Ambassador.

40

A jury trial, before the Honorable Harvey Bartle III

of the Eastern District of Pennsylvania, began on May 16,

2016, and lasted about a month. 7 Judge Bartle charged the

jury on Wednesday, June 15, 2016, and deliberations

began late that afternoon. The following day, after

deliberating for only four hours, the jury sent a note to the

judge. Written by the foreperson, the note read:

Juror Number 12 refuses to vote by the letter

of the law. He will not, after proof, still

change his vote. His answer will not change.

He has the 11 of us a total wreck knowing that

we are not getting anywhere in the hour of

deliberation yesterday and the three hours

today. We have zero verdicts at this time all

due to Juror Number 12. He will not listen or

reason with anybody. He is killing every

other juror’s experience. We showed him all

the proof. He doesn’t care. Juror Number 12

has an agenda or ax to grind w/govt.

JA5916.

Shortly after receiving the foreperson’s note, the

Court received a second communication—a note signed

7

The District Court dismissed one charge prior to

trial: an individual money laundering count against

Nicholas.

41

by nine jurors, including the foreperson. The second note

read:

We feel that [Juror 12] is argumentative,

incapable of making decision. He constantly

scream [sic] at all of us.

Id.

Judge Bartle met with counsel in his chambers and

advised them of his intention to voir dire both the

foreperson and Juror 12 in an effort to determine whether

the juror was deliberating as required by his oath. The

Judge also indicated that he would “stay away from the

merits of the case,” and that whether he would voir dire

more jurors “remain[ed] to be seen.” JA5917.

Counsel for the defendants objected to the Court’s

proposed inquiry. As a group, they indicated that while the

note could be read as suggesting “a flat refusal to

deliberate,” they were of the opinion that it sounded “more

in the manner of a disagreement over the evidence.”

JA5918. Nicholas’s counsel specifically argued that

questioning the jurors so quickly after the start of

deliberations would send a message that differences of

opinion among a block of jurors could be resolved by

complaining to the Court. Defense counsel acknowledged

that the case law gave Judge Bartle wide discretion on how

to proceed, but suggested that a “less intrusive” course of

action was preferred. JA5918–19. They collectively urged

42

the Court to do nothing more than remind the jurors of

their duty to deliberate.

The Government agreed with Judge Bartle’s

proposed voir dire. In the prosecution’s view, the Court

had already given proper instructions to the jury on their

duty to deliberate. The Government further argued that if

Juror 12 had exhibited bias, as suggested in the notes, he

would have lied during the voir dire process and his

refusal to deliberate would be “further evidence of that and

his unsuitability as a juror.” JA5921.

With all counsel present, and over defense counsel’s

objections, Judge Bartle ultimately questioned five jurors

in chambers. He questioned Juror 2 (the foreperson), Juror

12 (the subject of the complaints), Juror 3, Juror 6, and

Juror 1.

Judge Bartle began each voir dire by informing the

juror that he would ask a series of questions, but would not

inquire into the merits of the case or how any juror was

voting. Each juror was placed under oath, and Judge Bartle

asked, among other questions, whether screaming was

occurring; whether the jurors were discussing the

evidence; whether Juror 12 was placing his hands on other

jurors; and whether Juror 12 was unwilling to follow his

instructions.

The foreperson acknowledged that he had written

the initial note during lunch earlier that day. He stated that

Juror 12 was not willing to follow the law, but instead

43

“want[ed] to add his own piece of the law . . . which has

nothing to do with it.” JA5927–28. The foreperson further

testified that Juror 12 “was standing up screaming” and

that “[i]t was everybody pretty much against [Juror 12].”

JA5929. He testified that Juror 12 “has his own agenda,”

and that Juror 12 put his hand on another juror. JA5930.

The foreperson also stated that the jury had discussed only

a single count since the day before, and that they were still

discussing it. When the District Court responded that the

jurors should understand that they could take as much time

as they needed, the foreperson responded: “I understand

that. . . . [W]e all understand it. But we feel that he’s just—

he’s got another agenda.” JA5934.

Judge Bartle advised counsel that he considered this

“a very serious situation” and that he would proceed to

voir dire Juror 12. JA5937. Fattah’s counsel renewed his

objection to questioning Juror 12, which the Court

overruled. Brand’s counsel argued that because the Court

had decided to voir dire Juror 12, it should also voir dire

an additional juror. The Court agreed to do so.

When the Court questioned Juror 12, he admitted to

having “yelled back” at others, but only when they raised

their voices to him. JA5939. Juror 12 contended that he, in

fact, was “the only one” deliberating. Id. When an initial

vote was taken the previous afternoon, his vote “was

different than everybody else’s.” Id. Juror 12 explained to

the other jurors why his vote was different, bringing up

specific evidence. In response, the other jurors said “that

44

doesn’t mean anything” and “pointed to the indictment.”

JA5940. Juror 12 told the other jurors that the indictment

is not evidence. Id. In response, the others “threatened to

have [him] thrown off.” Id.

Juror 12 testified that a similar sequence of events

had taken place that morning. After a brief period of

deliberations, another vote was taken, and with the same

result as the previous afternoon. A discussion ensued, and

the other jurors again “point[ed] to the indictment.” Id.

Juror 12 told them to “read the charge,” “[t]he indictment

is not evidence.” Id. They read the charge, and Juror 12

again attempted to explain his view, but the other jurors

paid little attention. Accordingly, Juror 12 told the others

that if they did not want him there, he “[didn’t] want to be

[there]”—he would be “[o]kay with it” if they wanted him

taken off the jury. JA5941.

Upon hearing this testimony, Judge Bartle again

asked about the tone of deliberations. Juror 12 repeated

that he raised his voice only in response to others who did

so—he did “not want to yell at anybody.” JA5942. Judge

Bartle then asked whether he had touched other jurors.

Juror 12 replied that he had not hurt anyone. When asked

if he had put his hand on anybody’s shoulder, Juror 12

answered: “I couldn’t remember to be honest with you.”

JA5946.

Following Juror 12’s voir dire, the Court summoned

Juror 3 to chambers. Juror 3 testified that, after discussion

of a particular count, there was one juror at odds with the

45

others. According to Juror 3, “the rest of the jurors

pounced on the gentleman with the . . . dissenting

opinion.” JA5948. Juror 3 testified that Juror 12 “got very

defensive and just a little bit [] impatient” and that “the

other jurors were very impatient with him.” Id. Juror 3 did

not recall witnessing Juror 12 putting his hand on any

other jurors.

The Government requested that the Court voir dire

another juror. Defense counsel objected, claiming that the

questioning “threaten[ed] . . . the entire deliberative

process.” JA5949–50. Judge Bartle reminded counsel that

he had the authority to question each juror, and called for

voir dire of Juror 6.

Juror 6 testified that the jury had been discussing the

case and reviewing the evidence, but that Juror 12 “wants

to be seen” and was “being obstinate.” JA5951–52.

According to Juror 6, Juror 12 “may not agree” with the

conclusion of other jurors but “doesn’t give valid reasons

as to why he may disagree with the charge.” JA5952. Juror

6 also revealed that Juror 12 was the first to raise his voice,

and that he may have touched her and another juror. When

asked to clarify what she meant by Juror 12 disagreeing

with “the charge,” Juror 6 testified that Juror 12 was

“reading maybe too deeply into it and putting his own

emotions into it instead of just looking at what it says [and]

what the facts are.” JA5952, 5955. According to Juror 6,

Juror 12 “just continues to read past that into his own mind

of what he feels it should be.” JA5955. Juror 6 testified

46

that Juror 12’s “justification for some of his responses [did

not] seem to relate to what the matter [was] before

[them].” JA5957.

Judge Bartle chose to hear from yet another juror.

Juror 1 was called and informed the Court and counsel that

the jury “really [hadn’t] been able to even start the

deliberation process” in light of the disruptive behavior of

“one particular individual.” JA5958–59. The particular

individual, according to Juror 1, was “very opinionated”

and “[came] into the process with his view already

established, refusing to even listen to any of the evidence

. . . [being] very forceful . . . standing up, yelling, pointing

his finger.” JA5959. When asked if this individual was

willing to follow the Court’s instructions, Juror 1 testified

that he “pours [sic] over the documents very well” but that

he was adding other factors to answer the question on the

verdict form, such as “what did this person feel.” JA5961.

When Judge Bartle advised that intent was an appropriate

consideration, Juror 1 agreed but said that Juror 12 was

“trying to investigate . . . going way beyond the scope” of

the evidence before them. JA5961–62. Juror 12, he said,

“has an opinion and that opinion is established.” JA5962.

He stated that Juror 12 was “not willing to listen to any

sort of reason or any sort of what everyone else is saying”

but instead, was “trying to force everyone else to get to his

point of view.” Id. “[I]f he feels like he’s not getting there,

he gets louder and louder and points and puts his hand on

your shoulder . . . .” Id.

47

After questioning the five jurors (Jurors 1, 2, 3, 6,

and 12), Judge Bartle heard argument from counsel. The

attorney for the Government pointed out that the Court

would have to make a credibility determination because

Juror 12 stated that he did not recall touching anyone. In

the Government’s view, Juror 12 was disrupting the

process and should be removed. Defense counsel

disagreed. They argued that Juror 12 was conscientious

and was engaging with the evidence. They pointed out that

despite the testimony that Juror 12 was reading too deeply

into the instructions or introducing new factors for the jury

to consider, Juror 6 had testified that the jurors “talked it

through” and resolved the concern. JA5965. Defense

counsel argued that the jury was discussing intent, an issue

that was at the heart of the case. Defense counsel perceived

no breakdown in deliberations and argued that dismissal

would be premature. They suggested, instead, that the

Court provide a supplemental instruction.

Judge Bartle decided to adjourn for the afternoon.

But before he left the courtroom, defense counsel brought

two matters to his attention. First, in light of testimony

during the voir dire, they asked that the jury be

reinstructed that the verdict form and indictment were not

evidence. Second, they apprised the Judge of the standard

for juror dismissal set forth in United States v. Kemp, 500

F.3d 257 (3d Cir. 2007). Defense counsel stated that under

Kemp, a request to discharge a juror must be denied if there

is a possibility that the request stems from the juror’s view

of the evidence. Judge Bartle expressed hesitation on

48

reinstructing the jury, but agreed that Kemp would control

his determination as to whether dismissal was appropriate.

With the following morning came a new revelation.

With counsel in chambers, the Judge informed them that

“additional significant evidence” had come to light since

the previous day’s recess. JA5980. He placed his

courtroom deputy under oath, and she proceeded to testify

to an exchange that had occurred the previous day as she

was escorting Juror 12 back to the jury room after he had

been voir dired. According to the deputy, Juror 12 stopped

her in the hallway, placed his hand on her shoulder, and

looked her “straight in the eye.” JA5981. He then said:

“I’m going to hang this jury.” Id. The deputy then related

that before any further conversation could take place

between Juror 12 and the deputy, Judge Bartle summoned

Juror 12 back to his chambers. Later that day, however,

Juror 12 and the courtroom deputy had another exchange.

She testified that after all five jurors had been questioned,

Juror 12 emerged from the jury room and told her “I really

need to talk to you.” JA5982. She informed Judge Bartle

and counsel that Juror 12 “said more about how they’re

treating him and what he’s saying to them.” Id. He flatly

stated that “it’s going to be 11 to 1 no matter what.” Id.

There were no follow-up questions for the deputy.

Instead, defense counsel suggested that what Juror 12 may

have meant was that he was willing to hang the jury

because of a lack of evidence. They requested that Juror

12 be asked about his comments to the deputy.

49

After once again summoning Juror 12 to his

chambers, the Judge advised him that “[s]ome questions

have arisen” about what he may have done after being voir

dired the previous day. JA5985. Juror 12 acknowledged

having conversations with the courtroom deputy. When

asked “what happened” and “[w]hat occurred,” Juror 12

responded: “Basically, I said that there was a lot of name

calling going on.” JA5985. He said comments had been

made by other jurors about his service in the military. He

specifically referred to other jurors’ suggesting that he had

possibly “hit [his] head . . . hard a few times” while

serving in a parachute regiment. JA5986. He testified he

had conveyed these comments to the deputy and that he

found them offensive. When asked if he said anything else

to the deputy, Juror 12 responded: “I may have. I really

can’t recall.” JA5987. And when Judge Bartle followed up

by asking if he could recall anything else that he said to

the deputy, Juror 12 simply replied: “No. To me, that was

the most important thing.” Id. Juror 12 was then excused

from chambers.

Defense counsel next requested that the juror be

asked directly whether he told the courtroom deputy that

he was going to “hang this jury.” JA5988. Juror 12 was

recalled to chambers, and the following back and forth

took place:

The Court: You may be seated. And, of

course, [Juror 12], you know you’re under

oath here from yesterday?

50

Juror 12: Yes, sir.

The Court: . . . Did you say to [the courtroom

deputy] that you’re going to hang this jury?

Juror 12: I said I would.

The Court: You did?

Juror 12: I did. I said—I told her—I said, we

don’t agree; I’m not just going to say guilty

because everybody wants me to, and if that

hangs this jury, so be it.

....

Juror 12: I did say that, sir.

The Court: You didn’t remember that before?

Juror 12: I’m more concerned about people

spitting on my military record.

The Court: Did you say that you’d hang the

jury no matter what?

Juror 12: If they do—if we cannot come to—

The Court: No. The question is what you said

to her. Did you say to her you would hang the

jury no matter what?

Juror 12: I can’t really remember that. I did

say that if we didn’t—a person—no matter

what, I can’t recall that exactly.

The Court: All right. Thank you very much.

You can wait just out there in the anteroom.

JA5989–90.

Defense counsel continued to oppose Juror 12’s

dismissal. They argued that the juror’s concern was about

51

the evidence, and that his comments to the courtroom

deputy reflected a conviction that “he’s not going to agree

just because others want him to agree.” JA5991. They also

argued that nothing should be made of Juror 12’s failure

to mention the comments when initially questioned by the

Court, and that a supplemental instruction was all that was

warranted given the early stage of the deliberations.

The Government strongly disagreed. The Assistant

United States Attorney argued that Juror 12 “should

absolutely be removed” because “his demeanor ha[d]

demonstrated a hostility . . . both to the other jurors and to

the court.” JA5993. The Government also suggested that

Juror 12’s comments that he would hang the jury meant

that he was not participating in the deliberations and was

ignoring the evidence and the law.

Ruling from the bench, Judge Bartle announced:

I find [the deputy clerk] to be credible. I find

[Juror 12], not to be credible. I find that [Juror

12] did tell [the deputy clerk] that he was

going to hang this jury no matter what.

There have been only approximately

four hours of deliberation. There’s no way in

the world he could have reviewed and

considered all of the evidence in the case and

my instructions on the law.

I instructed the jury to deliberate,

meaning to discuss the evidence; obviously,

to hold onto your honestly held beliefs, but at

52

least you have to be willing to discuss the

evidence and participate in the discussion

with other jurors.

Juror number 12 has delayed,

disrupted, impeded, and obstructed the

deliberative process and had the intent to do

so. I base that having observed him, based on

his words and his demeanor before me.

He wants only to have his own voice

heard. He has preconceived notions about the

case. He has violated his oath as a juror.

And I do not believe that any further

instructions or admonitions would do any

good. I think he’s intent on, as he said,

hanging this jury no matter what the law is,

no matter what the evidence is.

Therefore, he will be excused, and I

will replace him with the next alternate . . . .

JA5994–95.

In response, defense counsel moved for a mistrial,

which the judge promptly denied. He then informed the

reconstituted jury that deliberations would need to start

over, and reinstructed them on certain points of law,

including that the verdict slip does not constitute evidence.

Judge Bartle elaborated upon his decision to remove

Juror 12 in two post-trial memorandum opinions. In the

first, ruling on a media request for the sealed transcripts,

he explained:

53

Here, there is no doubt that Juror 12

intentionally refused to deliberate when he

declared so early in the process that he would

hang the jury no matter what. This finding

was predicated on the admission of Juror 12

as reported by the court’s deputy clerk. The

facts became clear to the court after hearing

the credible testimony of the deputy clerk and

the less credible testimony of Juror 12. The

demeanor of Juror 12 before the court

confirmed the court’s findings.

GSA23–24. The second opinion addressed motions for

bail pending appeal from Nicholas and Brand. GSA25.

There, Judge Bartle explained:

The law is well-settled that the court has

discretion to act as it did under these

circumstances. See United States v. Kemp,

500 F.3d 257, 304 (3d Cir. 2007). The court,

after taking testimony, specifically found that

the juror, following only a few hours of

deliberation, stated to the court’s courtroom

deputy clerk that he would hang this jury no

matter what. He could not possibly have

reviewed all of the law and evidence of this

five-week trial at the time he made his

remark. The court examined the deputy clerk

and the juror under oath in the presence of

counsel for all parties. The undersigned

54

found the deputy clerk to be credible and the

juror not to be credible. Based on the juror’s

demeanor, it was clear he would not change

his attitude and that his intent had been and

would continue to be to refuse to deliberate

in good faith concerning the law and the

evidence.

GSA32.

After deliberating for approximately 15 hours, the

jury returned with its verdicts on June 21, 2016, finding

the defendants guilty on most counts. Fattah, Vederman,

and Brand were convicted on all counts. The jury acquitted

Bowser on sixteen counts, but found her guilty of the

bribery conspiracy and the associated charges of bank

fraud, making false statements to a financial institution,

falsifying records, and money laundering (Counts 16, 19,

20, 21 and 22). The jury also acquitted Nicholas of wire

fraud (Count 24). See Nicholas Supp. App. (NSA) 36.

The following week, on June 27, the Supreme Court

issued its opinion in McDonnell v. United States, 136 S.

Ct. 2355 (2016). McDonnell provided new limitations on

the definition of “official acts” as used in the honest

services fraud and bribery statutes under which Fattah and

Vederman had been convicted. Id. at 2369–72. Fattah and

Vederman both moved to set aside their convictions. The

District Court “acknowledge[d] that under McDonnell our

instructions to the jury on the meaning of official act

turned out to be incomplete and thus erroneous.” JA103.

55

But the Court held that “the incomplete and thus erroneous

jury instruction on the meaning of official acts did not

influence the verdict on the bribery counts” and upheld the

verdict on Counts 16–18 and 22–23. JA107, 121.

Fattah, Vederman, and Bowser had more success

with their other post-verdict motions. The District Court,

in a thoughtful opinion, granted relief under Federal Rule

of Criminal Procedure 29, acquitting Vederman of the

RICO conspiracy (Count 1) and Fattah, Vederman, and

Bowser of bank fraud, making false statements to a

financial institution, and falsifying records (Counts 19, 20,

and 21). JA37–139.

This appeal followed. 8 The defendants raise a

variety of challenges to their convictions. All defendants

but Bowser challenge the District Court’s decision to

dismiss Juror 12. Fattah and Vederman argue that the

District Court erred in upholding the jury’s verdict on the

bribery and honest services fraud counts in light of the

Supreme Court’s decision in McDonnell. Fattah, Brand

and Nicholas challenge the sufficiency of the evidence

underlying the RICO conviction. Several of the defendants

contend the District Court erred in its instruction on intent

and by sending the indictment out to the jury. There are

8

Fattah, Brand, Vederman, and Nicholas each filed a

timely notice of appeal, but Bowser did not challenge her

convictions.

56

also several evidentiary challenges.9 The Government

cross-appeals from the District Court’s judgment

acquitting Fattah and Vederman on Counts 19 and 20,

arguing that the District Court erred in interpreting the

definition of a “mortgage lending business” under 18

U.S.C. § 27. We address these arguments in turn.

We hold that the District Court erred in upholding

the jury verdict in light of McDonnell, and we will

therefore reverse and remand for retrial on Counts 16, 17,

18, 22, and 23. We also hold that the District Court erred

9

Pursuant to Rule 28(i), “Fattah joins in the arguments of

Herbert Vederman, Robert Brand, and Karen Nicholas to

the extent their arguments on appeal apply to Mr. Fattah.”

Fattah Br. 19 n.69. Federal Rule of Appellate Procedure

28(i) provides that a defendant, “[i]n a case involving

more than one appellant . . . may adopt by reference a part

of another’s brief.” Here, Fattah’s decision to join fails to

specify which of the many issues of his codefendants he

believes worthy of our consideration. Rather, it appears

that he presumes we will scour the record and make that

determination for him. This type of blanket request fails to

satisfy Rule 28(a)(5)’s directive requiring that the

“appellant’s brief must contain . . . a statement of the

issues presented for review.” Fed. R. App. P. 28(a)(5). We

conclude that expecting the appellate court to identify the

issues to be adopted simply results in the abandonment and

waiver of the unspecified issues. See Kost v. Kozakiewicz,

1 F.3d 176, 182 (3d Cir. 1993).

57

in acquitting Fattah and Vederman on Counts 19 and 20.

Because the jury’s verdict was supported by the evidence,

we will reinstate the convictions as to those counts. In all

other respects, we will affirm the judgment of the District

Court.

III. Juror Misconduct and Dismissal of Juror 12 10

Defendant Fattah challenges the District Court’s

decision to conduct an in camera inquiry into alleged juror

misconduct and the ultimate dismissal of Juror 12. 11 We

reject both challenges. The record reveals credible

allegations of juror misconduct and a sufficient basis to

support the finding that Juror 12 violated his oath.

A. Investigation of Alleged Juror Misconduct

We first consider whether the District Court erred in

its handling of the two notes from jurors. A trial court’s

response to allegations of juror misconduct is reviewed

under an abuse of discretion standard. United States v.

Boone, 458 F.3d 321, 326 (3d Cir. 2006) (citing United

States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993)). We

conclude that the District Court did not abuse its discretion

10

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

11

Vederman, Nicholas, and Brand adopt Fattah’s claim of

reversible error concerning the dismissal of Juror 12.

58

in addressing the issues raised in the jurors’ notes to the

Court.

Trial courts are afforded discretion in responding to

allegations of juror misconduct. This is so because “the

trial court is in a superior position to observe the ‘mood at

trial and the predilections of the jury.’ ” Resko, 3 F.3d at

690 (quoting United States v. Chiantese, 582 F.2d 974,

980 (5th Cir. 1978)). But this discretion is not unlimited.

Once the jury retires to deliberate, the confidentiality of its

deliberations must be closely guarded. An accused is

constitutionally entitled to be tried before a jury of his

peers. As ordinary citizens, jurors are “expected to speak,

debate, argue, and make decisions the way ordinary people

do in their daily lives.” Pena-Rodriguez v. Colorado, 137

S. Ct. 855, 874 (2017) (Alito, J., dissenting). To protect

against intrusion into a defendant’s right to be judged only

by fellow citizens, “the door to the jury room [is] locked.”

Id. at 875.

In Boone, this Court considered the threshold for

intervention by a trial judge who is presented with

allegations of juror misconduct during the course of

deliberations. 458 F.3d at 327. We recognized that “[i]t is

beyond question that the secrecy of deliberations is critical

to the success of the jury system.” Id. at 329. But that

secrecy abuts a competing interest—the jury’s proper

execution of its duties. That is, “a juror who refuses to

deliberate or who commits jury nullification violates the

sworn jury oath and prevents the jury from fulfilling its

59

constitutional role.” Id. Recognizing these competing

interests, we declined in Boone to adopt a sweeping

limitation on a trial court’s ability to investigate

allegations of misconduct during jury deliberations. See id.

Consistent with the standard applied at other stages of

criminal proceedings, Boone teaches that “where

substantial evidence of jury misconduct—including

credible allegations of jury nullification or of a refusal to

deliberate—arises during deliberations, a district court

may, within its sound discretion, investigate the

allegations through juror questioning or other appropriate

means.” Id.

Fattah argues that the District Court had no basis to

question any of the jurors. Fattah Br. 20. We disagree. In

Boone, notes from the jury presented substantial credible

evidence of misconduct. 458 F.3d at 330. Here, the initial

note from the foreperson alleged that Juror 12 “refuse[d]

to vote by the letter of the law,” would “not listen or reason

with anybody,” and that he had “an agenda or ax to grind”

with the Government. JA5916. The note contained

allegations of both a refusal to deliberate and a suggestion

of nullification. A refusal to deliberate is a violation of a

juror’s oath. Boone, 458 F.3d at 329 (citing United States

v. Baker, 262 F.3d 124, 130 (2d Cir. 2001) (“It is well-

settled that jurors have a duty to deliberate.”)). Moreover,

nullification—a juror’s refusal to follow the law—is a

violation of the juror’s sworn oath to render a verdict

according to the law and evidence. See United States v.

Thomas, 116 F.3d 606, 614–18 (2d Cir. 1997) (discussing

60

both “benevolent” and “shameful” examples of juror

nullification, but “categorically reject[ing] the idea that, in

a society committed to the rule of law, jury nullification is

desirable or that courts may permit it to occur when it is

within their authority to prevent”). The second jury note,

signed by nine jurors, supported the claim of misconduct

by asserting that Juror 12 was “incapable of making

decision[s]” and was “constantly scream[ing]” at the other

jurors. JA5916–17. We conclude that the District Court

did not abuse its discretion in deciding to initially question

Juror 2, and subsequently, Jurors 12, 3, 6 and 1.

Fattah also challenges the scope of the District

Court’s questioning. He argues that the rights to an

impartial jury and to a unanimous verdict “would be

rendered toothless if trial courts had free rein to question

jurors during deliberations.” Fattah Br. 36. Indeed, we

acknowledged the legitimacy of such a concern in Boone.

Despite adopting a modest “credible allegations” standard

for investigating misconduct, we “ke[pt] in mind the

importance of maintaining deliberative secrecy.” Boone,

458 F.3d at 329. Fattah asserts that the trial court’s

questions to the five jurors were “intrusive and pointed”

and “nothing like the questioning . . . approved in Boone.”

Fattah Br. 38. But Fattah does not elaborate on how, in his

view, the questions posed by Judge Bartle specifically

intruded into deliberative secrecy.

To be sure, Judge Bartle’s questioning of each juror

was more extemporaneous than the juror questioning in

61

Boone. There, the district court asked a single juror four

“concise and carefully-worded” questions. 458 F.3d at

330. Judge Bartle’s voir dire of each of the five jurors took

on a more conversational tone. We take no issue with that

approach. The substance of the judge’s questions was

limited and mirrored that of questions we deemed

appropriate in Kemp. There, the court conducted three

rounds of questioning. In the first round, each juror was

asked:

(1) “Are you personally experiencing any

problems with how the deliberations are

proceeding without telling us anything about

the votes as to guilt or innocence? If yes,

describe the problem.” (2) “Are all the jurors

discussing the evidence or lack of evidence?”

(3) “Are all the jurors following the court’s

instructions on the law?”

Kemp, 500 F.3d at 273. In the second and third rounds,

each juror was asked:

(1) “Is there any juror or jurors who are

refusing to deliberate?” (2) “Is there any juror

who is refusing to discuss the evidence or

lack of evidence?” (3) “Is there any juror who

is refusing to follow the Court’s

instructions?”

Id. at 274. Here, Judge Bartle began his voir dire of each

juror by stating that he did not wish for the juror to discuss

62

the merits of the case or to reveal the content of the

deliberations that had taken place. He asked the jurors

whether screaming was occurring, whether the jurors were

discussing the evidence, whether Juror 12 was placing his

hands on other jurors, and whether Juror 12 was unwilling

to follow his instructions.

Fattah points to no specific question posed or topic

discussed that was inappropriate, and we see little to no

substantive difference between the questions here and

those asked by the trial judge in Kemp. As in Kemp, “the

District Court took care to limit its questions to appropriate

matters that did not touch on the merits of the jury’s

deliberation, and expressly informed each juror on

multiple occasions that he or she should not reveal the

substance of the deliberations.” Id. at 302 (citing United

States v. Edwards, 303 F.3d 606, 634 n.16 (5th Cir. 2002)).

Fattah also argues that once the remarks of Juror 2

and Juror 12 revealed no further evidence of misconduct,

the court had no basis to question other jurors. Fattah

Reply 19. Yet, our cases make clear that a trial court may,

in its discretion, examine each juror. Kemp, 500 F.3d at

302 (“We have recognized that there are times in which

individual questioning is the optimal way in which to root

out misconduct.”). Indeed, “the District Court must utilize

procedures that will ‘provide a reasonable assurance for

the discovery of prejudice.’ ” Id. (quoting Martin v.

63

Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 807

(3d Cir. 1981)). 12

Judge Bartle, a very able and experienced district

judge, was in the best position to determine what type of

inquiry was warranted under the circumstances. We

conclude that his questioning of the five jurors was not an

abuse of discretion. See id. at 302.

B. Dismissal of Juror 12

Fattah, joined by Vederman, Brand, and Nicholas,

strongly contends that the District Court committed

reversible error by dismissing Juror 12. “We review the

dismissal of a juror for cause for abuse of discretion.”

12

Our cases do not suggest that a trial judge confronted

with allegations that a jury’s deliberations are being

obstructed by one of its members should always resort to

interviewing jurors. Reinstructing the jury on its duty to

deliberate will often be the better course at the first sign of

trouble. Mere disagreement among jurors—even spirited

disagreement—is no ground for intervention.

Furthermore, intrusive or leading questions about the

deliberative process may work against the twin goals of

protecting that process and ensuring that jurors remain

faithful to their oaths. We share the Eleventh Circuit’s

preference of “err[ing] on the side of too little inquiry as

opposed to too much.” United States v. Oscar, 877 F.3d

1270, 1287 (11th Cir. 2017) (quoting United States v.

Augustin, 661 F.3d 1105, 1133 (11th Cir. 2011)).

64

Kemp, 500 F.3d at 303. That deferential standard compels

us to affirm.

Rule 23(b) of the Federal Rules of Criminal

Procedure permits a trial court to excuse a deliberating

juror for good cause. See id. (citing Fed. R. Crim. P.

23(b)). Good cause exists where a juror refuses to apply

the law, refuses to follow the court’s instructions, refuses

to deliberate with his or her fellow jurors, or demonstrates

bias. See Kemp, 500 F.3d at 305–06; United States v.

Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017); Thomas, 116

F.3d at 617. Good cause does not exist when there is

reasonable but sustained disagreement about how a juror

views the evidence. The courts of appeals are emphatic

that trial courts “may not dismiss a juror during

deliberations if the request for discharge stems from

doubts the juror harbors about the sufficiency of the

government’s evidence.” Kemp, 500 F.3d at 303 (quoting

United States v. Brown, 823 F.2d 591, 596 (D.C. Cir.

1987)); see also Oscar, 877 F.3d at 1287 (same); United

States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999);

Thomas, 116 F.3d at 622.

To reinforce a defendant’s right to a unanimous

jury, we have adopted a high standard for juror dismissal.

Kemp, 500 F.3d at 304 & n.26. “[D]istrict courts may

discharge a juror for bias, failure to deliberate, failure to

follow the district court’s instructions, or jury nullification

when there is no reasonable possibility that the allegations

of misconduct stem from the juror’s view of the evidence.”

65

Id. at 304 (emphasis added). This “no reasonable

possibility” standard is “by no means lax.” Id. Rather, “[i]t

corresponds with the burden for establishing guilt in a

criminal trial.” Id.

We first applied this standard in Kemp, but have not

had occasion to do so since. There, the evidence

supporting the district court’s removal decision was

“overwhelming.” 500 F.3d at 304. Ten jurors separately

and consistently reported that a juror was improperly

biased, and did so only after three rounds of questioning

and careful and correct instructions from the district court

as to the distinction between appropriate skepticism and

impermissible bias. Id. at 304–05; see id. at 275–76

(district court’s instruction). The testimony also showed

that the juror in question refused to deliberate or to discuss

the evidence with her fellow jurors. Id. at 305.

Whether the evidence of misconduct in this case is

as strong as that in Kemp is beside the point. After only

four hours of deliberations, Juror 12 stated unequivocally

to the courtroom deputy that he was “going to hang” the

jury, and that it would be “11 to 1 no matter what.”

JA5981–82 (emphasis added). These statements, coupled

with the District Court’s finding that Juror 12 lacked

credibility, provided a sufficient basis for Juror 12’s

dismissal.

As grounds for excusing Juror 12, the District Court

found that he refused to deliberate in good faith, “delayed,

disrupted, impeded, and obstructed the deliberative

66

process and had the intent to do so,” JA5995, and that he

was “intent on . . . hanging this jury no matter what the law

is, no matter what the evidence is.” Id. The District Court

determined from this that Juror 12 had violated his oath as

a juror and that no further instructions or admonitions

could rehabilitate the juror. Id. The District Court based

these findings on personal observation, including Juror

12’s words and demeanor, and making the specific finding

that Juror 12 was not credible. That finding is amply

supported by the record.

In United States v. Abbell, 271 F.3d 1286, 1303 (9th

Cir. 2001), the Ninth Circuit recognized that “the

demeanor of the pertinent juror is important to juror

misconduct determinations” because the “juror’s

motivations and intentions are at issue.” That court

emphasized, as we do, that a district judge is best situated

to assess the demeanor of a juror. Id. Here, Juror 12 stated

he could not recall putting his hand on another juror’s

shoulder, while his fellow jurors’ testimony was consistent

on this point. Juror 12 also failed, at first, to recall his

troubling statements to the courtroom deputy despite

having made those statements only the previous afternoon.

When questioned a second time and asked directly about

the statements, he admitted to saying that he would hang

the jury but claimed he could not “really remember”

saying “no matter what” the day before. JA5989–90. Juror

12’s spotty recollection of the previous day’s events

further supports the District Court’s finding that he was

not credible.

67

Fattah argues that the credibility determination was

not, by itself, a sufficient reason to dismiss the juror

because the record demonstrates more than a reasonable

possibility that the complaints about his conduct stemmed

from Juror 12’s own view of the Government’s case.

Fattah Reply Br. 11; Fattah Br. 25, 28. Fattah claims that

the District Court abused its discretion by dismissing Juror

12 “on the basis of, in effect, six words the juror

purportedly said to the court’s deputy after he was verbally

attacked by other jurors.” Fattah Br. 24. According to

Fattah, the questioning of the other jurors “confirmed that

there were no legitimate grounds for removing juror 12.”

Id. at 26. We conclude otherwise.

“A district court’s finding on the question whether

a juror has impermissibly refused to participate in the

deliberation process is a finding of fact to which

appropriate deference is due.” Baker, 262 F.3d at 130.

While district courts must apply a high standard for juror

dismissal, their underlying findings are afforded

considerable deference on appeal. Kemp, 500 F.3d at 304

(citing Abbell, 271 F.3d at 1302–03). We will reverse only

if the decision to dismiss a juror was “without factual

support, or for a legally irrelevant reason.” Abbell, 271

F.3d at 1302 (citation omitted).

Here, the District Court had a legitimate reason for

removing Juror 12. Refusal to deliberate constitutes good

cause for dismissal. Although the judge did not expressly

articulate the Kemp standard when he announced that he

68

would dismiss Juror 12, he did acknowledge the “no

reasonable possibility” standard in his discussion with

counsel. The unmistakable import of the District Court’s

statement from the bench is that there was no reasonable

possibility that Juror 12’s intransigence was based on his

view of the evidence. See Oscar, 877 F.3d at 1288 n.16.

Fattah contends that there is no record support for

the finding that Juror 12 said “he was going to hang this

jury no matter what.” Fattah Br. 29. To be sure, the

courtroom deputy’s testimony is not that Juror 12 used the

words “hang this jury” and “no matter what” in the same

sentence. She testified that Juror 12 first stated “I am going

to hang this jury,” then later stated “it is going to be 11 to

1 no matter what.” JA5981–82. This is a distinction

without a difference. Likewise, Fattah challenges the

District Court’s finding that Juror 12 was determined to

hang the jury “no matter what the law is” and “no matter

what the evidence is.” Fattah Br. 29. Although there is no

evidence that Juror 12 uttered the phrases “no matter what

the law is” or “no matter what the evidence is,” the District

Court was describing the import of Juror 12’s statements.

This was not error.

Fattah expresses the concern that “[i]f jurors are

asked the right questions or interrogated long enough, it

would not be difficult for a trial court to elicit testimony

from [a] majority [of] jurors that can be held up as

evidence of a dissenting juror’s bias or refusal to

deliberate.” Fattah Br. 22. He also worries that a group of

69

jurors might have an incentive to rid themselves of a juror

who holds a different view. Id. These are valid concerns—

but no basis existed for such concerns in this case. Juror

12’s own words provided most of the support for his

eventual dismissal. Furthermore, his statements were

made early in the deliberations, in a complex case, before

any juror could reasonably be expected to have reached

final verdicts on the twenty-nine counts before the jury.

The able District Judge did not err in finding that

Juror 12 refused to deliberate and therefore violated his

oath.

IV. The District Court’s Instructions Under

McDonnell

On appeal, Fattah and Vederman renew their

challenge to the jury instructions given on Counts 3, 16,

17, 18, 22, and 23, concerning the meaning of the term

“official act” as used in the bribery statute (pursuant to

which both were convicted) and the honest services fraud

statute (pursuant to which Fattah alone was convicted).

In light of the Supreme Court’s opinion in

McDonnell v. United States, 136 S. Ct. 2355 (2016),

released the week after the jury verdict, the District Court

conceded that its instructions were incomplete and

erroneous, at least as to Counts 16–18. Nevertheless, the

District Court held that the erroneous jury instructions had

not influenced the verdict on the bribery counts, and

declined to set aside Fattah and Vederman’s convictions.

70

As to Counts 16–18 and 22–23, we disagree, and will

reverse the District Court’s judgment. The District Court’s

judgment with respect to Count 3, which did not involve

Vederman, will be affirmed. JA78–79.

A. The McDonnell Framework

In McDonnell, the Supreme Court interpreted the

term “official act” as defined in 18 U.S.C. § 201(a)(3). 136

S. Ct. at 2368. The statute defines an “official act” as “any

decision or action on any question, matter, cause, suit,

proceeding or controversy, which may at any time be

pending, or which may by law be brought before any

public official, in such official’s official capacity, or in

such official’s place of trust or profit.” 18 U.S.C.

§ 201(a)(3). The McDonnell Court distilled this definition

into two requirements:

First, the Government must identify a

“question, matter, cause, suit, proceeding or

controversy” that “may at any time be

pending” or “may by law be brought” before

a public official. Second, the Government

must prove that the public official made a

decision or took an action “on” that question,

matter, cause, suit, proceeding, or

controversy, or agreed to do so.

136 S. Ct. at 2368. Applying this two-step test to Governor

Robert McDonnell’s convictions, the Supreme Court

concluded that “the jury was not correctly instructed on

71

the meaning of ‘official act,’ ” and as a result, “may have

convicted Governor McDonnell for conduct that is not

unlawful.” Id. at 2375. Given that uncertainty, the Court

“[could not] conclude that the errors in the jury

instructions were ‘harmless beyond a reasonable doubt.’ ”

Id. (quoting Neder v. United States, 527 U.S. 1, 16 (1999)).

The Supreme Court, therefore, vacated Governor

McDonnell’s convictions. Id.

McDonnell lays out a clear path for the Government

to follow in proving that an accused has performed an

“official act.” First, the Government must “identify a

‘question, matter, cause, suit, proceeding or controversy’

that ‘may at any time be pending’ or ‘may by law be

brought’ before a public official.” 136 S. Ct. at 2368

(quoting 18 U.S.C. § 201(a)(3)). This first step is divided

into two sub-components. In Step 1(A), the Government

must “identify a ‘question, matter, cause, suit, proceeding

or controversy.’ ” Id. Step 1(B) then clarifies that the

identified “question, matter, cause, suit, proceeding or

controversy” be one that “ ‘may at any time be pending’ or

‘may by law be brought’ before a public official.” Id.

Under Step 1(A), a “question, matter, cause, suit,

proceeding or controversy” must be “a formal exercise of

governmental power that is similar in nature to a lawsuit

before a court, a determination before an agency, or a

hearing before a committee.” Id. at 2372. Importantly, “a

typical meeting, telephone call, or event arranged by a

72

public official” does not qualify as such a formal exercise

of governmental power. Id. at 2368.

Step 1(B) then requires us to ask whether the

qualifying “question, matter, cause, suit, proceeding or

controversy” was one that “ ‘may at any time be pending’

or ‘may by law be brought’ before a public official.” Id.

As the McDonnell Court clarified, “ ‘[p]ending’ and ‘may

by law be brought’ suggest something that is relatively

circumscribed—the kind of thing that can be put on an

agenda, tracked for progress, and then checked off as

complete.” Id. at 2369; accord United States v. Repak, 852

F.3d 230, 252 (3d Cir. 2017) (quoting McDonnell, 136 S.

Ct. at 2369). By contrast, matters described at a high level

of generality—for example, “[e]conomic development,”

“justice,” and “national security”—are not sufficiently

“focused and concrete.” McDonnell, 136 S. Ct. at 2369.

In McDonnell, the Court concluded that at least

three questions or matters identified by the Fourth Circuit

were sufficiently focused:

(1) whether researchers at any of Virginia’s

state universities would initiate a study of [a

drug]; (2) whether the state-created Tobacco

Indemnification and Community

Revitalization Commission would allocate

grant money for the study of [a chemical

compound]; and (3) whether the health

insurance plan for state employees in

73

Virginia would include [a specific drug] as a

covered drug.

Id. at 2370 (internal quotations omitted) (quoting United

States v. McDonnell, 792 F.3d 478, 515–16 (4th Cir.

2015)). We provided guidance in the form of a fourth

example in Repak, when we held that a redevelopment

authority’s awarding of contracts was “a concrete

determination made by the [redevelopment authority’s]

Board of Directors.” 852 F.3d at 253.

Step 2 requires the Government to prove that the

public official made a “decision” or took “an action” on

the identified “question, matter, cause, suit, proceeding or

controversy.” McDonnell, 136 S. Ct. at 2368. The

McDonnell Court explained:

Setting up a meeting, hosting an event, or

calling an official (or agreeing to do so)

merely to talk about a research study or to

gather additional information . . . does not

qualify as a decision or action on the pending

question of whether to initiate the study.

Simply expressing support for the research

study at a meeting, event, or call—or sending

a subordinate to such a meeting, event, or

call—similarly does not qualify as a decision

or action on the study, as long as the public

official does not intend to exert pressure on

another official or provide advice, knowing

74

or intending such advice to form the basis for

an “official act.”

Id. at 2371. The Court further clarified:

If an official sets up a meeting, hosts an

event, or makes a phone call on a question or

matter that is or could be pending before

another official, that could serve as evidence

of an agreement to take an official act. A jury

could conclude, for example, that the official

was attempting to pressure or advise another

official on a pending matter. And if the

official agreed to exert that pressure or give

that advice in exchange for a thing of value,

that would be illegal.

Id.

Here, Fattah was charged with engaging in three

categories of official acts, which we analyze in accordance

with the McDonnell framework. In Counts 16–18 and 22–

23, Fattah is alleged to have set up a meeting between

Vederman and the U.S. Trade Representative, attempted

to secure Vederman an ambassadorship, and hired

Vederman’s girlfriend, all in return for a course of conduct

wherein Vederman provided things of value to Fattah.

In this case, as in McDonnell, the jury instructions

were erroneous. We conclude that the first category of the

charged acts—setting up a meeting between Vederman

75

and the U.S. Trade Representative—is not unlawful, and

that the second category—attempting to secure Vederman

an ambassadorship—requires reconsideration by a

properly instructed jury. The third charged act—hiring

Vederman’s girlfriend—is clearly an official act. But

because we cannot isolate the jury’s consideration of the

hiring from the first two categories of charged acts, we

must reverse and remand the judgment of the District

Court.

B. The Kirk Meeting

We turn first to Fattah’s scheduling of a meeting

between Vederman and the U.S. Trade Representative,

Ron Kirk. Under McDonnell, “setting up a meeting . . .

does not, standing alone, qualify as an ‘official act.’ ” 136

S. Ct. at 2368. Fattah’s setting up the meeting between

Vederman and Kirk was therefore not an official act, a

concession implicit in the Government’s opening brief.

See Gov’t Br. 32 (failing to mention the Kirk meeting as

one of the “two categories” of allegedly “official acts”).

But the jury was not properly instructed on this point.

Without the benefit of the principles laid down in

McDonnell, the jury was free to conclude that arranging

the Kirk meeting was an official act—and it may have

done so. The District Court’s erroneous jury instructions,

therefore, cannot survive harmless error review.

In a footnote in its brief to this Court, the

Government argues that evidence about the Kirk meeting

was offered only “because it established the strength of

76

Vederman’s desire to be an ambassador” and not because

the Government was attempting to establish the meeting

as an independent official act. Id. at79–80 n.6. But the

record undercuts the Government’s post hoc justification.

The indictment, provided to the jury in redacted

form for use in its deliberations, lists Fattah’s setting up

the Kirk meeting as an official act under the heading

“FATTAH’s Official Acts for VEDERMAN.” JA494.

Under this heading are three distinct subheadings:

(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit

of Another Executive Branch Position,” and (3) “Hiring

the Lobbyist’s Girlfriend to the Congressional Staff.”

JA494–95. The second subheading, “The Pursuit of

Another Executive Branch Position,” describes the

arrangement of the Kirk meeting. Quite clearly, then, this

three-part structure demonstrates that setting up the Kirk

meeting was one of three distinct categories of official acts

alleged by the Government.

Although there is some support for the

Government’s argument that evidence of the Kirk meeting

was presented at trial only to establish the extent of

Vederman’s interest in becoming an ambassador, JA827,

852–53 (mentioning the Kirk meeting in close proximity

to references to Fattah’s attempts to secure Vederman an

ambassadorship), it is undermined by language in the

redacted indictment itself, and by the way in which the

Government presented its case at trial as a “pattern” of

connected acts.

77

The redacted indictment, for example, refers to the

Kirk meeting as “The Pursuit of Another Executive

Branch Position.” JA495 (emphasis added). The use of the

word “Another” strongly suggests that evidence about the

Kirk meeting was not merely evidence of Fattah’s attempt

to secure Vederman an ambassadorship, but was also

evidence of a separate and distinct attempt to secure

Vederman a position on a federal trade-related

commission. The redacted indictment also notes that “[i]n

or around May 2011, with little progress made on securing

an ambassadorship for VEDERMAN, FATTAH turned

towards obtaining for VEDERMAN an appointment in the

Executive Branch to a federal trade commission.” Id.

(emphasis added). The words “turned towards,” taken

literally, clearly convey that arranging the Kirk meeting

was presented as distinct from Fattah’s efforts to secure

Vederman an ambassadorship.

The District Court denied Fattah and Vederman a

new trial on Counts 17 and 18, referring to evidence of the

Kirk meeting as “de minimis” and noting that “Kirk’s

testimony during this lengthy trial lasted a mere sixteen

minutes.” JA97 n.14. In the District Court’s view,

evidence of the Kirk meeting “played no role in the

outcome” of the case. Id. Considering the record in light

of McDonnell, we are not so sure.

Although it is possible that evidence of the Kirk

meeting played a minor role at trial when compared to the

other acts on which the Government presented evidence,

78

the redacted indictment suggests that the Kirk meeting was

a significant part of the Government’s case. The

indictment dedicates five paragraphs to describing the

Kirk meeting, but just three paragraphs to describing the

hiring of Vederman’s girlfriend—a hiring that, as we

explain below, is clearly an official act. JA495–96. While

neither the number of minutes used at trial nor the number

of paragraphs contained in an indictment is a dispositive

unit of measurement for determining the significance of

evidence, we conclude that the District Court’s erroneous

jury instructions pertaining to the Kirk meeting were not

harmless.

We conclude, in accordance with McDonnell, that

Fattah’s arranging a meeting between Vederman and the

U.S. Trade Representative was not itself an official act.

Because the jury may have convicted Fattah for conduct

that is not unlawful, we cannot conclude that the error in

the jury instruction was harmless beyond a reasonable

doubt, and we must vacate and remand the convictions of

Fattah and Vederman as to Counts 16, 17, 18, 22 and 23.

C. Fattah’s Efforts to Secure Vederman an

Ambassadorship

The nature of Fattah’s efforts to secure Vederman

an ambassadorship is less clear, and presents a closer

question than the Kirk meeting. We ultimately conclude

that the question warrants remand so that it may be

answered by a properly instructed jury. On remand, the

jury must decide whether Fattah’s conduct constituted a

79

“decision” or “action” under Step 2 of the McDonnell

analysis.

At the outset, it is clear to us that, under Steps 1(A)

and 1(B), a formal appointment of Vederman as an

ambassador would qualify as a “matter” that “may at any

time be pending” before a public official. The formal

appointment of a particular person (Vederman), to a

specific position (an ambassadorship), constitutes a matter

that is sufficiently focused and concrete. The formal

appointment of an ambassador is a matter that is “pending”

before the President—the constitutional actor charged

with nominating ambassadors—as well Senators, who are

charged with confirming the President’s ambassadorial

nominations. U.S. Const. art. II § 2 (“[H]e shall nominate,

and by and with the Advice and Consent of the Senate,

shall appoint Ambassadors . . . .”). It is beyond cavil that

the formal appointment of an ambassador satisfies both

sub-components of McDonnell’s Step 1.

Turning to Step 2, we consider whether Fattah’s

efforts to secure Vederman an ambassadorship qualify as

making a “decision” or taking “an action” on the identified

“matter” of appointment. McDonnell, 136 S. Ct. at 2368.

Although those efforts—three emails, two letters, and one

phone call—do not themselves qualify as a “question,

matter, cause, suit, proceeding, or controversy” under

McDonnell’s Step 1, they may nonetheless qualify as the

making of a “decision” or taking “an action” on the

identified matter of appointment. Id.

80

McDonnell’s Step 2 requires us to determine

whether Fattah’s efforts qualify as permissible attempts to

“express[] support,” or impermissible attempts “to

pressure or advise another official on a pending matter.”

Id. at 2371. At trial, the jury was not instructed that they

had to place Fattah’s efforts on one side or the other of this

divide. The jury might even have thought they were

permitted to find Fattah’s efforts—three emails, two

letters, and one phone call—to themselves be official acts,

rather than a “decision” or “action” on the properly

identified matter of appointment. Such a determination

would have been contrary to the dictates of McDonnell.

Faced with such uncertainty, we cannot assume the

jury verdict was proper. Although the jury might not have

concluded that Fattah’s efforts were themselves official

acts, and although the jury might not have concluded that

those efforts crossed the line into impermissible attempts

“to pressure or advise,” we are unable to conclude that the

jury necessarily did so. Nor can we, on the cold record

before us, determine whether Fattah’s efforts to secure

Vederman an ambassadorship crossed the line.

Determining, for example, just how forceful a strongly

worded letter of recommendation must be before it

becomes impermissible “pressure or advice” is a fact-

intensive inquiry that falls within the domain of a properly

instructed jury. Should the Government elect to retry these

counts after remand, the finder of fact will need to decide

whether Fattah’s efforts constituted permissible attempts

to “express[] support,” or impermissible attempts “to

81

pressure or advise another official on a pending matter.”

Id.

D. The Zionts Hiring

The third group of acts charged in the Fattah–

Vederman scheme involves Fattah’s decision to hire

Vederman’s girlfriend, Alexandra Zionts, as a

congressional staffer. We conclude that the hiring was an

official act. A brief analysis of McDonnell’s two steps

suffices to show why this is so.

Here, under McDonnell’s Step 1(A), the relevant

“matter” is the decision to hire Zionts. Step 1(B) of the

analysis is satisfied because the hiring decision was

“pending” before Fattah himself. And that hiring was

“focused and concrete,” “within the specific duties of an

official’s position—the function conferred by the

authority of his office.” Id. at 2369. Finally, McDonnell’s

Step 2 requires that the “Government . . . prove that the

public official made a decision or took an action ‘on’ [the

identified] question, matter, cause, suit, proceeding, or

controversy, or agreed to do so.” Id. at 2368. Fattah’s

decision to hire Zionts clearly satisfies that requirement.

We therefore conclude that the hiring of Zionts was an

official act under McDonnell.

Vederman concedes that the Zionts hiring was an

official act. Oral Argument Transcript at 5–6. Fattah, for

his part, maintains that “hiring someone for a routine, part-

time, short-term position falls well outside [the] definition

82

[of ‘official act’] and is nothing like a lawsuit, agency

determination, or committee hearing, even if each shares

the happenstance that federal funds will be used.” Fattah

Reply Br. 25.

Fattah’s argument lacks traction. Official acts need

not be momentous decisions—or even notable ones.

Judges, for example, make “routine” evidentiary rulings

every day, and yet it is beyond question that those rulings

are official acts. In the realm of official acts, it is of no

moment that Zionts provided only “part-time, short term”

labor. When a public official hires an employee to work in

his government office, he has engaged in an official act.

* * *

If we could conclude that the Zionts hiring was the

only category of actions that the jury relied on when it

found that Fattah performed an official act under Counts

16–18 and 22–23, remand would not be necessary. But, as

we have explained, we cannot rule out that the jury

erroneously convicted Fattah and Vederman based on

other actions that were not official acts under

McDonnell.13

13

More specifically, the incomplete, and therefore

erroneous, instructions could have led the jury to commit

at least one of three mistakes. First, the jury could have

improperly convicted Vederman and Fattah based on the

Kirk meeting alone, or misunderstood the Kirk meeting to

83

The Government argues that because the Zionts

hiring was an official act, the effect of the erroneous jury

instructions could be no more than harmless. The jury’s

verdict, the Government contends, permits us to deduce

that the jury necessarily concluded the Zionts hiring was

an official act, and that this conclusion alone supported

Fattah’s and Vederman’s convictions as to Counts 16–18

and 22–23—regardless of whether the jury erroneously

found any unofficial acts to be official acts. We disagree.

Fattah and Vederman objected to the definition of

“official act” at trial. We thus apply the harmless error

standard of review. McDonnell, 136 S. Ct. at 2375. The

Government argues that because the jury convicted Fattah

and Vederman of illegally laundering the proceeds of a

“scheme to commit bribery” under Count 23, the jury

found that the scheme must have encompassed only the

Zionts hiring. JA531.That would mean that the jury did not

conclude that the “scheme to commit bribery” included

be a necessary component of an impermissible “pattern”

of official acts. Second, the jury might have concluded that

Fattah’s efforts to secure Vederman an ambassadorship

were themselves official acts. Third, the jury might have

concluded that Fattah’s efforts to secure Vederman an

ambassadorship were merely attempts to “express[]

support,” rather than to “exert pressure . . . or provide

advice,” but nonetheless erroneously concluded that those

expressions of support were official acts. McDonnell, 136

S. Ct. at 2371.

84

any acts that McDonnell now makes clear were unofficial.

Yet the redacted indictment, jury instructions, and the fact

that the Government presented its case under a “pattern”

theory at trial compel us to reject the Government’s

argument.

The very first sentence under Count 23 of the

redacted indictment incorporates all three categories of

“Overt Acts” contained within paragraphs “58 through 95

of Count One.” 14 All three of these categories fall under a

general heading within the redacted indictment titled “The

Bribery and Fraud Scheme [redacted].” JA494. The jury

had before it instructions for Count 23 which referred to

“the alleged bribery scheme involving an $18,000

payment,” JA448 (emphasis added), and the redacted

indictment which referred to “a scheme to commit

bribery,” JA531 (emphasis added). The parallel language

could well lead a rational jury to conclude that the relevant

“scheme” included all three categories of acts listed under

the general heading: “The Bribery and Fraud Scheme

[redacted].” JA494 (emphasis added).

14

JA531. Paragraphs 58 through 95 of Count 1 refer to the

three categories of allegedly official acts discussed above:

(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit

of Another Executive Branch Position,” and (3) the

“Hiring of the Lobbyist’s Girlfriend to the Congressional

Staff.” JA494–95.

85

Like the redacted indictment and jury instructions,

the Government’s trial arguments referred to patterns and

a course of conduct, and stressed that the jury need not

connect specific payments to particular official acts. In its

closing argument to the jury, the Government stated that

the alleged “scheme took place over a period of several

years. Over and over again you’re going to see the same

pattern.” JA5383 (emphasis added). Then, in its rebuttal

argument, the Government went out of its way to

explicitly distinguish its “pattern” theory from an

alternative theory that would have directly connected

individual payments to individual acts. As the prosecutor

argued to the jury:

Ms. Recker appears to argue that each thing

of value must coincide with some specific

official act, but that is not the law and that is

not what Judge Bartle is going to instruct you.

Instead what he will tell you is that the

government is not required to prove that

Vederman intended to influence Fattah to

perform a set number of official acts in return

for things of value so long as the evidence

shows a course of conduct of giving things of

value, things of value to Fattah in exchange

for a pattern of official acts favorable to

Vederman. In other words a stream of

benefits. These for those, not this for that.

86

JA5715–16 (emphases added). In closing to the jury, the

Government made several other references to this

“pattern” theory, 15 and the District Court referred to this

“pattern” theory in its instructions to the jury. As Judge

Bartle instructed:

[I]t is not necessary for the government to

prove that a defendant intended to induce a

public official to perform a number of official

acts in return for things of value.

So as long as the evidence shows a

course of conduct of giving things of value to

a public official in exchange for a pattern of

official acts favorable to the giver.

JA5833–34 (emphasis added). On appeal, the Government

changes course, asking us to assume that the jury ignored

these repeated references to a “pattern of official acts” and

15

See, e.g., JA5389 (“And the exchange of an official act

for a thing of value is called a bribe. There’s the pattern.

Fattah needs money, Vederman gets an official act.”); JA

5393 (“That’s why you see the pattern over and over again.

Fattah needs money, Vederman gets an official act.”);

JA5400 (“The same pattern we saw over and over again.

Fattah needs money, Vederman gets an official act.”);

JA5409 (“[Y]ou know that these were bribes because of

the pattern you saw over and over and over again. Fattah

needs money, Vederman gets an official act, that makes

these things a bribe.”).

87

instead considered the Zionts hiring and Vederman’s

$18,000 payment to Fattah as an isolated quid pro quo.

This is an invitation to speculate, and we decline to do so.16

The jury began its deliberations accompanied by a copy of

the redacted indictment which alleged a pattern of official

acts, consisting of any combination of three categories of

acts: pursuing an ambassadorship, arranging the Kirk

meeting, and hiring Zionts. In light of the erroneous

instructions, and because only one category clearly

16

Providing some support to the Government’s ultimately

unconvincing argument that the jury considered the Zionts

hiring and $18,000 payment in isolation, we note that the

redacted indictment does mention those two events side-

by-side in paragraph 78 of the indictment’s Part V. JA497

(“On January 13, 2012, VEDERMAN wired $18,000 to

FATTAH, and six days later, on January 19, 2012,

BOWSER emailed VEDERMAN’s girlfriend, A.Z.,

welcoming her as a new employee to FATTAH’s

Congressional Staff.”). But although paragraph 78

mentions the $18,000 wire transfer and the Zionts hiring

in the same breath, paragraph 78 does not instruct the jury

to connect these two events apart from the rest of the

evidence presented at trial. In light of the other instructions

and arguments indicating that the jury should not consider

the Zionts hiring in isolation, but instead should consider

the hiring as one part of a three-part scheme, paragraph 78

is not sufficient to avoid a reversal and remand on the

convictions of Fattah and Vederman as to Counts 16–18

and 22–23.

88

qualifies as an “official act,” the jury’s deliberations were

fraught with the potential for McDonnell error. We will

vacate the convictions of Fattah and Vederman as to

Counts 16, 17, 18, 22, and 23, and remand to the District

Court.

E. Vederman’s Sufficiency Challenge to Counts 16–18

and 22–23

Vederman argues that there is insufficient evidence

to support a conviction, even if a jury were properly

instructed under McDonnell. Specifically, Vederman

argues that there is insufficient evidence to convict him

and Fattah, after remand, on Counts 16–18 and 22–23

because “[a]t least seven of the eight alleged ‘official acts’

were, as a matter of law, not official at all.” Vederman Br.

35. As to the single act that Vederman implicitly concedes

to be an official act—the Zionts hiring—Vederman argues

that “[t]he only thing that even arguably associates” the

Zionts hiring with Vederman was its timing in relation to

Vederman’s sham purchase of the Fattahs’ Porsche. Id.

According to Vederman, “the undisputed chronology

precludes any inference that Vederman conferred this

benefit on his friend as an illegal bribe.” Id. (emphasis

omitted). Vederman is wrong. Sufficient evidence was

produced at trial to have allowed a properly-instructed jury

to convict Fattah and Vederman of Counts 16–18 and 22–

23.

To begin with, even if the Zionts hiring had been the

sole official act to survive this Court’s interpretation of

89

McDonnell, there would still be sufficient evidence to

convict Fattah and Vederman. Zionts did not receive

written notice of her official hiring until six days after the

sham Porsche purchase. Moreover, the jury would not be

restricted to considering the chronology of the sham

purchase alone. It would be free to consider Vederman’s

entire course of conduct. Under the general heading

“VEDERMAN’S Payments and Things of Value to

FATTAH,” the redacted indictment not only refers to the

$18,000 wire transaction from Vederman to Fattah as part

of the sham Porsche purchase, but also to Vederman’s

$3,000 payment for the college tuition of Simone Muller,

Fattah’s live-in au pair, as well as thousands of dollars in

payments made by Vederman for Chip Fattah’s college

tuition. JA496–97.

And the Zionts hiring is not the only act to survive

our application of McDonnell. As we explained, a jury

could find that Fattah’s efforts to secure Vederman an

ambassadorship—three emails, two letters, and a phone

call—were an impermissible attempt to “pressure or

advise” President Obama, Senator Casey, or both men.17

17

Although Fattah’s efforts to secure Vederman an

ambassadorship present a jury question that is not for us to

answer on appeal, we note that not one of these efforts

alone could qualify as an official act itself. See McDonnell,

136 S. Ct. at 2372 (“Setting up a meeting, talking to

another official, or organizing an event (or agreeing to do

so)—without more—does not fit that definition of ‘official

90

This means that a properly instructed jury on remand,

presented with evidence of Fattah’s efforts to secure an

ambassadorship for Vederman and evidence of the Zionts

hiring, could find more than a single official act.

F. Blue Guardians

In addition to the charges arising from his dealings

with Vederman, Fattah was charged in Count 3 with

act.’ ”). The relevant question for a jury to consider on

remand, then, is whether these actions constituted “a

‘decision or action’ on a different question or matter”—to

wit, the formal appointment of an ambassador. Id. at 2369

(emphasis omitted).

Even though the emails, letters, and phone call are

not, individually, official acts, it will be for a jury to decide

if Fattah’s efforts to secure an ambassadorship for

Vederman crossed the line from permissible “support” to

impermissible “pressure or advice.” While we express

doubt that some of Fattah’s efforts concerning the

ambassadorship are, when considered in isolation, enough

to cross that line, a properly instructed jury considering all

of the facts in context might nonetheless conclude that

other efforts—such as a hand-delivered letter to the

President of the United States—indeed crossed that line.

Further, a jury might find that in the aggregate, three

emails, two letters, and a phone call crossed the line and

therefore constituted a “decision or action” on the

identified matter of appointment.

91

participating in a scheme with Lindenfeld to funnel money

to a fraudulent nonprofit organization. In connection with

this scheme, Fattah was convicted of conspiring to commit

honest services fraud.

Fattah owed Lindenfeld nearly $100,000 for work

performed on Fattah’s 2007 mayoral campaign. In lieu of

repayment, Fattah suggested that Lindenfeld create an

entity, later named Blue Guardians, to which Fattah would

direct $15,000,000 in public funds by using his position as

a member of the House Committee on Appropriations.

Nothing in McDonnell requires us to upset Fattah’s

conviction on Count 3.

Step 1(A) of our McDonnell analysis requires the

Government to “identify a ‘question, matter, cause, suit,

proceeding or controversy.’ ” 136 S. Ct. at 2368. Here, the

“matter” is the appropriation of millions of dollars in

public funds. See Repak, 852 F.3d at 253–54 (holding the

awarding of redevelopment funds to be an official act). In

particular, it was Fattah’s promise to perform this official

act that was unlawful. As McDonnell makes clear:

[A] public official is not required to actually

make a decision or take an action on a

“question, matter, cause, suit, proceeding or

controversy”; it is enough that the official

agree to do so. The agreement need not be

explicit, and the public official need not

specify the means that he will use to perform

his end of the bargain.

92

136 S. Ct. at 2370–71 (internal citations omitted). That

Fattah took steps to actually carry out his promise (e.g., by

drafting and sending a formal appropriations request on

official congressional letterhead) is evidence of his illegal

promise. See id. at 2371.

Step 1(B) requires the Government to establish that

the “ ‘question, matter, cause, suit, proceeding or

controversy’ . . . ‘may at any time be pending’ or ‘may by

law be brought’ before a public official.” McDonnell, 136

S. Ct. at 2368. Appropriating public funds was not only a

matter that was pending before Fattah as a member of the

Appropriations Committee, it was also a matter that was

pending before the Chairman and Ranking Member of an

Appropriations Subcommittee to whom Fattah ultimately

sent a formal written request. See id. at 2369 (“[T]he

matter may be pending either before the public official

who is performing the official act, or before another public

official.”). Appropriating millions of dollars in response to

the Blue Guardians request is “focused and concrete,” and

“the kind of thing that can be put on an agenda, tracked for

progress, and then checked off as complete.” Id.

Given Fattah’s membership on the Appropriations

Committee, this was “something within the specific duties

of an official’s position—the function conferred by the

authority of his office.” Id. Even if we were to assume,

against all reason, that an appropriation is not “something

within the specific duties” of either Fattah or the Chairman

or Ranking Member of an Appropriations Subcommittee,

93

Fattah’s formal request for an appropriation was

something that Fattah had the authority to do. Like the

Executive Director in Repak, who lacked authority himself

to award redevelopment funds but could request such

funds from the Board, Fattah used his position as a

Congressman to formally request appropriations for the

Blue Guardians. 852 F.3d at 254 (“Repak had the power

to, and indeed did, make recommendations to the

[redevelopment authority.

Step 2 of McDonnell requires the Government to

“prove that the public official made a decision or took an

action ‘on’ that question, matter, cause, suit, proceeding,

or controversy, or agreed to do so.” 136 S. Ct. at 2368

(emphasis added). Here, Fattah agreed to request an

appropriation for a bogus purpose. Unlike Fattah’s letters,

emails, and phone call seeking an ambassadorship for

Vederman, there is no potential for the jury to have made

a mistake when it found Fattah’s Blue Guardians promise

unlawful.

Fattah argues that the Government presented “[n]o

evidence . . . that would have allowed [the jury] to

conclude that [he] made a decision or took an action, or

could have done so, on the question whether Blue

Guardians would receive a $15 million federal grant.”

Fattah Br. 46. This argument misses the point. It was

Fattah’s agreement to engage in the official act of formally

requesting the appropriation that was illegal. See

McDonnell, 136 S. Ct. at 2371.

94

Lindenfeld’s trial testimony provided sufficient

evidence of Fattah’s illegal agreement. JA1694–96, 1954.

Fattah’s letter provided additional evidence from which

the jury could have concluded that Fattah illegally agreed

to perform an official act. 18 In short, the agreement itself

was illegal, and the Government provided sufficient

evidence for the jury to conclude that the illegal agreement

took place.

The Government’s evidence in support of the Blue

Guardians scheme meets the requirements of McDonnell,

and the Count 3 verdict will stand.

V. Sufficiency of the Evidence for the RICO

Conspiracy Conviction

The jury found Fattah, Vederman, Brand, and

Nicholas guilty of the RICO conspiracy charged in Count

1 of the indictment, but acquitted Bowser. Vederman filed

a post-verdict motion, and the District Court overturned

his RICO conspiracy conviction.

18

Despite Fattah’s protestation to the contrary, there is

evidence that Fattah took steps to carry out his official act.

JA6432–33 (Letter from Congressman Fattah to House

Appropriations Subcommittee members “request[ing]

funding and support for the following projects and

programs of critical importance,” including $3,000,000

for “Blue Guardians”).

95

On appeal, Fattah, Brand, and Nicholas challenge

the sufficiency of the evidence supporting their RICO

conspiracy convictions. We “review[] the sufficiency of

the evidence in the light most favorable to the government

and must credit all available inferences in favor of the

government.” United States v. Riddick, 156 F.3d 505, 509

(3d Cir. 1998). If a rational juror could have found the

elements of the crime beyond a reasonable doubt, we must

sustain the verdict. United States v. Cartwright, 359 F.3d

281, 286 (3d Cir. 2004), abrogated on other grounds by

United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d

Cir. 2013) (en banc).

The indictment charged a RICO conspiracy in

violation of 18 U.S.C. § 1962(d), which makes it

“unlawful for any person to conspire to violate” § 1962(c).

Section 1962(c) provides:

It shall be unlawful for any person . . .

associated with any enterprise engaged in, or

the activities of which affect, interstate . . .

commerce, to conduct or participate, directly

or indirectly, in the conduct of such

enterprise’s affairs through a pattern of

racketeering activity . . . .

18 U.S.C. § 1962(c).

In Salinas v. United States, 522 U.S. 52 (1997), the

defendant was convicted of a § 1962(d) RICO conspiracy,

but a jury acquitted him of the substantive RICO offense

96

under § 1962(c). Id. at 55. The Supreme Court rejected

Salinas’s contention that his conviction had to be set aside

because he had neither committed nor agreed to commit

the two predicate acts required for the § 1962(c) offense.

Id. at 66. The Court declared that liability for a RICO

conspiracy under § 1962(d), “unlike the general

conspiracy provision applicable to federal crimes,” does

not require proof of an overt act. Id. at 63. A conspiracy

may be found, the Court explained, “even if a conspirator

does not agree to commit or facilitate each and every part

of the substantive offense. The partners in the criminal

plan must agree to pursue the same criminal objective and

may divide up the work, yet each is responsible for the acts

of each other.” Id. at 63–64 (citations omitted). This means

that, if a plan “calls for some conspirators to perpetrate the

crime and others to provide support, the supporters are as

guilty as the perpetrators.” Id. at 64. Thus, opting into and

participating in a conspiracy may result in criminal

liability for the acts of one’s co-conspirators. Smith v.

Berg, 247 F.3d 532, 537 (3d Cir. 2001).

Accordingly, liability for a RICO conspiracy may

be found where the conspirator intended to “further an

endeavor which, if completed, would satisfy all of the

elements of a substantive criminal offense, but it suffices

that he adopt the goal of furthering or facilitating the

criminal endeavor.” Salinas, 522 U.S. at 65. Because the

substantive criminal offense here was conducting a

§ 1962(c) enterprise, the government had to prove:

97

(1) that two or more persons agreed to

conduct or to participate, directly or

indirectly, in the conduct of an enterprise’s

affairs through a pattern of racketeering

activity; (2) that the defendant was a party to

or member of that agreement; and (3) that the

defendant joined the agreement or conspiracy

knowing of its objective to conduct or

participate, directly or indirectly, in the

conduct of an enterprise’s affairs through a

pattern of racketeering activity.

United States v. John-Baptiste, 747 F.3d 186, 207 (3d Cir.

2014).

In United States v. Turkette, 452 U.S. 576 (1981),

the Supreme Court instructed that an enterprise is a “group

of persons associated together for a common purpose of

engaging in a course of conduct.” Id. at 583. The

government can prove an enterprise “by evidence of an

ongoing organization, formal or informal, and by evidence

that the various associates function as a continuing unit.”

Id. In Boyle v. United States, 556 U.S. 938 (2009), the

Supreme Court established that an “association-in-fact

enterprise must have at least three structural features: a

purpose, relationships among those associated with the

enterprise, and longevity sufficient to permit these

associates to pursue the enterprise’s purpose.” Id. at 946.

The structure necessary for a § 1962(c) enterprise is not

complex. Boyle explained that an enterprise

98

need not have a hierarchical structure or a

“chain of command”; decisions may be made

on an ad hoc basis and by any number of

methods—by majority vote, consensus, a

show of strength, etc. Members of the group

need not have fixed roles; different members

may perform different roles at different

times. The group need not have a name,

regular meetings, dues, [or] established rules

and regulations . . . .While the group must

function as a continuing unit and remain in

existence long enough to pursue a course of

conduct, nothing in RICO exempts an

enterprise whose associates engage in spurts

of activity punctuated by periods of

quiescence.

Id. at 948.

Another element of a substantive § 1962(c) RICO

enterprise is that the enterprise must conduct its affairs

through a pattern of racketeering activity. Section 1961

defines racketeering activity to include various criminal

offenses, including wire fraud, 18 U.S.C. § 1344, and

obstruction of justice, 18 U.S.C. § 1511. See 18 U.S.C.

§ 1961(1). A pattern of such activity “requires at least two

acts of racketeering activity.” Id. § 1961(5). The

racketeering predicates may establish a pattern if they

“related and . . . amounted to, or threatened the likelihood

99

of, continued criminal activity.” H.J. Inc. v. Nw. Bell Tel.

Co., 492 U.S. 229, 237 (1989).

Here, the District Court denied the post-trial

sufficiency arguments raised by Fattah, Brand, and

Nicholas. It reasoned:

For a RICO conspiracy to exist, the

conspirators must agree to participate in an

enterprise with a unity of purpose as well as

relationships among those involved. The

evidence demonstrates that an agreement

among Fattah, Brand, Nicholas, Lindenfeld,

and Naylor existed for the overall purpose of

maintaining and enhancing Fattah as a

political figure and of preventing his standing

from being weakened by the failure to be able

to pay or write down his campaign debts.

These five persons agreed to work together as

a continuing unit, albeit with different roles.

The Government established that

Fattah, Brand, and Nicholas conspired along

with Naylor and Lindenfeld to conceal and

repay the 2007 illegal $1,000,000 loan to the

Fattah for Mayor campaign.

JA128–29. The District Court further determined that

[w]hile each member may not have been

involved in every aspect of the enterprise, its

activities were sufficiently structured and

100

coordinated to achieve the purpose of

maintaining and enhancing Fattah’s political

standing and of preventing him from being

weakened politically because of his

campaign debts.

A RICO conspiracy also requires an

agreement to participate in an enterprise with

longevity sufficient to pursue its purpose.

This was established. In May 2007 the illegal

loan was obtained and continued through its

repayment in January 2008 and into at least

2014 when the last campaign report reducing

a fake campaign debt to Naylor’s consulting

firm was filed by Fattah.

JA131.

The defendants argue that the evidence is

insufficient to show either an enterprise for purposes of

§ 1962(c) or an agreement as required for a § 1962(d)

conspiracy. We disagree, and conclude that the District

Court’s analysis is on the mark.

We begin by considering whether there was an

agreement. The evidence showed that Fattah knew each

member involved in the scheme to conceal the unlawful

campaign loan. When Lindenfeld learned of the $1 million

loan, he informed Fattah that it exceeded campaign

finance limits. In short, the transaction was unlawful, and

the two knew it. The transaction nonetheless went

forward, disguised as a loan, with Lindenfeld executing

101

the promissory note as Strategies’ officer and obligating

Strategies to repay Lord $1 million. The concealment

efforts continued as Lindenfeld funneled a substantial

portion of the loan proceeds to Naylor for get-out-the-vote

efforts. After the losing campaign, Lindenfeld spoke with

Fattah and Naylor about accounting for the funds that had

been spent. They decided not to include the amounts in the

FFM campaign reports. Fattah instructed Naylor to

prepare a fictitious invoice, and Naylor complied. The

FFM campaign reports filed from 2008 to 2014 disclosed

nothing about the unlawful $1 million loan. Instead, they

falsely showed that Naylor’s consulting firm made yearly

in-kind contributions of $20,000 in debt forgiveness, when

in reality there was no debt to forgive.

As Lindenfeld fretted over repaying the $600,000

balance of the Lord loan, Naylor assured him that Fattah

had promised to take care of the repayment. And the

evidence supports an inference that Fattah recruited both

Nicholas and Brand in doing so. As EAA’s director,

Nicholas could fund the repayment. Brand, through his

company, Solutions, acted as the middleman: he received

the payment from EAA pursuant to a fictitious contract,

and then forwarded the balance due to Strategies pursuant

to yet another fictitious contract. Nicholas and Brand

continued in the spring and summer of 2008 to hide the

fictitious agreement and the $600,000 payment to

Lindenfeld to satisfy the Lord loan.

102

In short, this evidence shows that Fattah,

Lindenfeld, Naylor, Brand, and Nicholas all agreed to

participate in Fattah’s plan to conceal the unlawful

campaign loan to maintain his political stature. Nicholas

and Brand claim that they had no knowledge of the false

campaign reporting aspect of the plan. But as Salinas

instructs, conspirators need not “agree to commit or

facilitate each and every part of the” conspiracy. 522 U.S.

at 63. Rather, they “must agree to pursue the same criminal

objective and may divide up the work, yet each [be]

responsible for the acts of each other.” Id. at 63–64. Thus,

a conspirator may agree to “facilitate only some of the acts

leading to the substantive offense” yet still be criminally

liable. Id. at 65.

The evidence showed that a substantial amount of

money was needed to repay Lord, and that the source of

the repayment was EAA, a non-profit organization whose

funds could be spent only for purposes consistent with the

terms of the grants it received. It also showed that Nicholas

was presented with a sham contract to legitimize the

EAA–Solutions transaction. We conclude that the

evidence is sufficient to support an inference that Nicholas

knew at the start that the plan was unlawful. Yet she still

agreed to provide the requisite funds and to play a role in

concealing the illegal campaign loan so that Fattah could

maintain his political stature.

As to Brand, even if he did not know that false

campaign reports were being filed, the evidence is

103

sufficient to show he played a key role in the enterprise.

From the outset, Brand worked to disguise the repayment

of the Lord loan as the consideration in a sham contract

between EAA and Solutions. He then arranged for the

transfer of funds to Strategies in satisfaction of a

contractual term in another purported business agreement

between Solutions and Strategies. The evidence reveals

that Brand was the point man in the effort to meet the

January 31, 2008 deadline to repay the Lord loan, and it

amply shows that Brand also agreed to participate in the

plan to hide the illegal campaign loan and its repayment to

benefit Fattah politically.

Fattah, Brand, and Nicholas attack their RICO

conspiracy convictions on another front. They argue that

those verdicts should be set aside because the evidence

fails to show that the various schemes alleged in the

indictment as part of the RICO conspiracy are connected.

The RICO count, they assert, charges a hub-and-spoke

conspiracy that is unconnected by a rim. In their view,

Fattah is the hub, and the spokes consist of a series of

independent schemes: the Vederman bribery scheme, the

payment of the outstanding tuition debt of Fattah’s son

Chip, the Blue Guardians plan, and the repayment of the

illegal Lord loan to maintain Fattah’s political stature.

They argue that, without a unifying rim, their actions

cannot constitute an enterprise. Again, we disagree.

In In re Insurance Brokerage Antitrust Litigation,

618 F.3d 300 (3d Cir. 2010), we concluded, in analyzing

104

one of plaintiffs’ RICO claims, that the alleged hub-and-

spoke enterprise—comprised of broker hubs and insurer

spokes—could not withstand a motion to dismiss because

it did not have a unifying rim. Id. at 374. We explained

that the allegations did “not plausibly imply concerted

action—as opposed to merely parallel conduct—by the

insurers, and therefore cannot provide a ‘rim’ enclosing

the ‘spokes’ of these alleged ‘hub-and-spoke’

enterprises.” Id. Thus, the allegations did not “adequately

plead an association-in-fact enterprise” because the hub-

and-spoke conspiracy failed to “function as a unit.” Id.

That is not the case here. The evidence showed that

Fattah, Brand, and Nicholas agreed to conceal the illegal

Lord loan. Each acted for the common purpose of

furthering Fattah’s political interests. In short, they

engaged in concerted activity and functioned as a unit. The

jury convicted Fattah, Brand, and Nicholas of the RICO

conspiracy based on the racketeering activity of wire fraud

and obstruction of justice to conceal the unlawful

transaction. Because the evidence shows that Fattah,

Lindenfeld, Naylor, Brand, and Nicholas agreed to protect

Fattah’s political status by acting to maintain the secrecy

of the unlawful Lord loan, the alleged lack of a unifying

“rim” is not fatal to this RICO enterprise. What matters in

analyzing the structure of this enterprise is that it

functioned as a unit. Boyle, 556 U.S. at 945; In re Ins.

Brokerage Antitrust Litig., 618 F.3d at 374. That “basic

requirement” was met. Id.

105

We turn next to the contention that the evidence

fails to establish other components of an enterprise. We

conclude that much of the evidence supporting the

existence of an agreement also shows that there was an

association-in-fact enterprise.

Boyle made clear that an association-in-fact

enterprise must have “a purpose, relationships among

those associated with the enterprise, and longevity

sufficient to permit these associates to pursue the

enterprise’s purpose.” 556 U.S. at 946. The purpose, as we

have repeatedly observed, was to maintain and preserve

Fattah’s political stature by concealing the illegal loan and

its repayment. Though informal, there were relationships

among those associated with the enterprise. Fattah was at

the center of this association and he directed its activity.

He knew each of the association’s members, and the

members knew each other (except, perhaps, for Nicholas,

who may not have known Lindenfeld).19

19

Nicholas’s lack of familiarity with Lindenfeld does not

undermine her membership in this association-in-fact

enterprise. We have previously explained that “[i]t is well-

established that one conspirator need not know the

identities of all his co-conspirators, nor be aware of all the

details of the conspiracy in order to be found to have

agreed to participate in it.” United States v. Riccobene, 709

F.2d 214, 225 (3d Cir. 1983), abrogated on other grounds

by Griffin v. United States, 502 U.S. 46 (1991).

106

The Government also adduced sufficient proof of

the longevity component required for an enterprise. The

scheme began in mid-2007, when Lord made the

campaign loan, directing the proceeds of the loan to

Strategies. From the outset, Fattah, Lindenfeld, and Naylor

all knew they needed to conceal this illegal transaction.

They began by fabricating an explanation for the source of

the funds they spent on election day. SLA created a fake

invoice for the campaign, showing a fictitious debt that

Naylor could later forgive by fictitious in-kind

contributions existing only on Fattah’s campaign finance

reports.

The effort to disguise the Lord loan was not limited

to filing false campaign reports. Nicholas and Brand, who

joined the conspiracy a few months later than the other

members, understood that they too had to make the

fraudulent $600,000 payment by EAA to Solutions appear

legitimate. Nicholas and Brand tried to disguise the sham

contract as an ordinary transaction (even though it called

for a six-figure upfront payment simply to support

Solutions’ various projects), and they succeeded in

keeping it out of the DOJ auditors’ view until August

2008. The ruse continued as Solutions funneled the

$600,000 payment to Strategies under the guise of another

sham contract (which also required an upfront six-figure

payment). The scheme then continued as Fattah submitted

false FFM campaign reports from 2008 through 2014.

107

Finally, we consider whether the enterprise

conducted its affairs through a pattern of racketeering

activity, as required for a § 1962(c) enterprise. Wire fraud

and obstruction of justice may constitute “racketeering

activity” under § 1961(1). As the Supreme Court

instructed in H.J. Inc., the “multiple predicates within a

single scheme” must be related and “amount[] to, or

threaten[] the likelihood of, continued criminal activity.”

492 U.S. at 237. Here, the amount of the illegal loan to be

concealed was substantial. The enterprise needed to write

off the fictitious debt to Naylor’s consulting firm, and it

was urgent that both the EAA–Solutions contract and the

Solutions–Strategies contract be legitimized. We conclude

the evidence was sufficient to establish that this enterprise

conducted its affairs through a pattern of racketeering

activity and that the predicate acts of wire fraud and

obstruction of justice were related. The racketeering

activity furthered the goals of maintaining the secrecy of

this $1 million illicit campaign loan and of preserving

Fattah’s political stature.

Nicholas contends that the evidence fails to

establish a pattern of racketeering activity because the

actions to which she agreed did not “extend[] over a

substantial period of time” as H.J. Inc. requires. 492 U.S.

at 242. That case indeed instructs that the continuity

requirement of a pattern is a “temporal concept,” and that

“[p]redicate acts extending over a few weeks or months”

do not satisfy the continuity concept. Id. But the Supreme

Court explained that continuity may also be established by

108

showing that there is a “threat of continued racketeering

activity.” Id. Here, the course of fraudulent conduct

undertaken to secure and to conceal the $1 million Lord

loan consisted of the creation of sham debts, fictitious

contracts, and false accounting entries over the course of

about a year. But because Fattah needed to appear able to

retire his campaign debt, the enterprise needed to continue

filing false campaign reports for several years, allowing

the annual $20,000 in-kind debt forgiveness contributions

to appear to satisfy Naylor’s fake $193,000 invoice. That

evidence was sufficient to establish the requisite threat of

continued criminal activity. See H.J. Inc., 492 U.S. at 242–

43.

We conclude that the Government met its burden in

proving that Fattah, Brand, and Nicholas 20 engaged in a

RICO conspiracy in violation of § 1962(d).

20

Nicholas also asserts, in passing, that that her conviction

under § 1962(d) should be set aside because that statutory

provision is unconstitutionally vague as applied to her.

According to Nicholas, a person of ordinary intelligence

would not know that her actions constituted an agreement

to participate in a RICO enterprise. See United States v.

Pungitore, 910 F.2d 1084, 1104–05 (3d Cir. 1990). To the

contrary, a person of ordinary intelligence, who had been

employed by a prominent politician and then became the

CEO of a nonprofit organization which that politician had

founded (and, to some extent, continued to direct), would

109

VI. Variance from the Indictment and Sufficiency of

the Evidence for Count 2

Brand and Nicholas challenge their convictions for

conspiracy to commit wire fraud by arguing that the

Government’s evidence at trial impermissibly varied from

the indictment. Nicholas also challenges the sufficiency of

the evidence to support her conviction for conspiracy to

commit wire fraud. We address these contentions

together. 21

Count 2 of the indictment alleged a single

conspiracy. JA277–79. Brand and Nicholas assert that the

Government’s evidence at trial did not support the

existence of a single conspiracy but instead showed two

independent conspiracies, only one of which involved the

two of them. According to Brand and Nicholas, the only

conspiracy with which they were involved ended more

than five years before the Government charged them. That

would mean that all their conduct falls outside the five-

year limitations period for wire fraud conspiracy under 18

U.S.C. § 3282.

realize that agreeing to participate with others in hiding an

unlawful campaign loan of $1 million could constitute an

unlawful RICO conspiracy.

21

In her briefing, Nicholas discusses variance in far less

detail than Brand, so we refer primarily to Brand’s

arguments. See Nicholas Br. 54–56. Her variance

arguments fail for the same reasons that Brand’s fail.

110

“A conviction must be vacated when (1) there is a

variance between the indictment and the proof presented

at trial and (2) the variance prejudices a substantial right

of the defendant.” Kemp, 500 F.3d at 287 (quoting United

States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989)). We see

no variance, and will affirm the District Court.

A variance exists “if the indictment charges a single

conspiracy while the evidence presented at trial proves

only the existence of multiple conspiracies.” Id. “We must

determine ‘whether there was sufficient evidence from

which the jury could have concluded that the government

proved the single conspiracy alleged in the indictment.’ ”

Id. (quoting Kelly, 892 F.2d at 258). Viewing the record in

the light most favorable to the Government, we consider

three factors: (1) “whether there was a common goal

among the conspirators”; (2) “whether the agreement

contemplated bringing to pass a continuous result that will

not continue without the continuous cooperation of the

conspirators”; and (3) “the extent to which the participants

overlap in the various dealings.” Id. (quoting Kelly, 892

F.2d at 259).

Brand argues that the Government failed to

establish a common goal among the conspirators. To

determine whether the conspirators shared a common

goal, “we look to the underlying purpose of the alleged

criminal activity” in a fairly broad sense. United States v.

Rigas, 605 F.3d 194, 214 (3d Cir. 2010) (en banc). In

Rigas, we described the common goal of the defendants as

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“enriching [themse

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